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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO 70 OF 2003
ALOIS EREBEBE & TAROS TOGOTE
Appellants
V
THE STATE
Respondent
Waigani: Cannings J, Kariko J, Kassman J
2011: 24 October, 2 December
CRIMINAL LAW – identification evidence – alleged inconsistencies in evidence of State witnesses – alibi evidence – conviction under Criminal Code, Section 7 (principal offenders) – whether appeal against conviction on nine counts of wilful murder ought to be upheld.
The appellants were convicted after trial of nine counts of wilful murder. The trial judge relied on the identification evidence of three State witnesses, which put the appellants at or in the vicinity of the crime scene, and in the case of the second appellant, on admissions made in a police interview of his involvement in a plan to kill one of the deceased. The trial judge rejected alibi evidence regarding the first appellant and concluded that he was directly involved in the incident in which the deceased were killed and in regard to the second appellant found that he took part in the plan to kill the first deceased and was in the vicinity of the incident in which the deceased were killed, thereby providing encouragement to those who directly killed the deceased, and being guilty by virtue of Section 7 of the Criminal Code. The appellants appealed against their conviction on six grounds relating to alleged errors of the trial judge in upholding the identification evidence of the State, rejecting the alibi evidence of the first appellant and convicting the appellants under Section 7 of the Criminal Code.
Held:
(1) The trial judge correctly applied the principles in the leading case John Beng v The State [1977] PNGLR 115 when accepting the identification evidence.
(2) The trial judge correctly applied the principles in the leading case John Jaminan v The State (No 2) [1983] PNGLR 318 when rejecting the alibi evidence.
(3) The trial judge correctly applied Section 7 of the Criminal Code in finding that, though it was not proven that either of the appellants killed any of the deceased, each was guilty under Criminal Code, Section 7.
(4) None of the grounds of appeal was upheld and the appeal was entirely dismissed.
Cases cited
The following cases are cited in the judgment:
Agiru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Stanley Poke v The State (2010) SC1055
The State v Alwyn Wani (2010) N3968
The State v John Badi Woli and Pengas Rakom [1978] PNGLR 51
The State v Kevin Peteru (2011) N4233)
The State v Thomas Lui (2004) N2706
APPEAL
This was an appeal against conviction for nine counts of wilful murder.
Counsel
L Siminji, for the appellants
J Kesan, for the respondent
2 December, 2011
1. BY THE COURT: This is an appeal against the conviction by the National Court at Goroka constituted by Justice Batari of the appellants, Alois Erebebe and Taros Togote, of nine counts of wilful murder. The appellants also appealed against their sentences of life imprisonment but abandoned that part of the appeal at the commencement of the hearing. Also set down for hearing was a cross-appeal by the Public Prosecutor against the sentences. We have adjourned the hearing of that cross-appeal pending our decision on the appeal against conviction.
THE TRIAL
2. The appellants were convicted for their involvement in the killing of nine people in the ambush of a vehicle being driven by Jerry Malamamo along a road at Mohuveto in the Bena-Bena area of Eastern Highlands Province on Sunday 21 November 1999. Mr Malamamo was shot dead along with four other adults, Sopuhe Iyaue, Lainame Apaihe Lope, Malamamo Soboe and Malamamo Alilipae. Four children who were also on the vehicle were killed by being cut and stabbed with knives: Junior Jerry Malamamo, Zeena Jerry, Bata Jerry and Kenuwe Ekebae.
3. Four State witnesses gave oral evidence and three of them testified that they were passengers on the vehicle. The first State witness was Mr Malamamo's wife who identified the first appellant, Alois Erebebe, as being one of a number of gunmen. She did not say that she saw him firing any shots but she identified him as being near the vehicle armed with an M16 immediately after the ambush and said that she struggled with him at one stage as he searched the glove-box compartment of the vehicle for her husband's pistol, before making her escape into the bush. The second State witness was a younger brother of Mr Malamamo who said that he was seated on the tray of the vehicle, behind the off-sider. When the vehicle was fired upon he ducked and laid low and escaped by rolling into a drain. He stood up and saw the chest and face of the first appellant, Alois Erebebe. The third State witness was a woman who said that she was seated behind the driver. She ducked when the vehicle and the driver and some of the passengers were hit with rapid gun fire. She escaped into the bush. She identified the second appellant, Taros Togote, as being in the vicinity, holding a knife. The fourth State witness was the police investigator, Inspector Jim Namora, then the head of Goroka CID, who gave evidence of the circumstances of the arrest of the appellants, their police interviews and other aspects of the police investigation. Other evidence relied on by the State was tendered by consent: post-mortem reports, a sketch plan of the crime scene, the records of interview, a military camouflage uniform and a military notebook belonging to the first appellant (who was at the time of the incident a member of the Papua New Guinea Defence Force, holding the rank of Major), a sick leave application and a police investigation report.
4. For the defence both appellants gave evidence. The first appellant, Alois Erebebe, raised an alibi: he was at Kainantu watching a touch rugby grand final. Three witnesses gave evidence in support of the alibi. The second appellant, Taros Togote, admitted to his attendance at a meeting in the village on the morning of the incident at which it was agreed that the deceased, Jerry Malamamo, who was rumoured to have spent K40,000.00 acquiring hire-powered firearms to use in a tribal fight against the appellants' tribe, had to be 'stopped', but denied being involved in the ambush and said that he was on the other side of the mountain and did not see or hear any guns being fired.
5. As to the first appellant, the trial judge accepted the identification evidence of the wife and the younger brother of Mr Malamamo, both of whom were regarded as convincing in their testimony. By contrast the alibi witnesses were not convincing, and the first appellant himself gave an unconvincing account of his presence at Kainantu. Also relevant was evidence as to his attempting to catch a flight out of Goroka to Port Moresby on Tuesday 23 November. In addition there was evidence that his father had been killed by Mr Malamamo's lain a couple of years before the incident, thus giving him a motive for wanting to kill Mr Malamamo and members of his lain. Diary notes in his field notebook suggested he had a strong interest in the tribal warfare and was prepared to fund his side's operations. His Honour found that there was overwhelming evidence that he was involved in the killings and that it was likely that he was one of the gunmen who intentionally killed Mr Malamamo and the other adults who died from gunshot wounds. There was also an intention to kill the four children who were killed by being cut on the head. His Honour concluded that even if the first appellant did not kill any of the deceased, his presence at the scene armed with a high-powered firearm showed that he shared a common intention with the others present to kill the deceased, and that he aided and encouraged them to do so. He was therefore convicted of nine counts of wilful murder.
6. As to the second appellant, Taros Togote, the trial judge noted that there were admissions in his record of interview that he was at a meeting in the village on the morning of the incident at which it was planned to set up an ambush and to kill Mr Malamamo and others with guns and knives and that he was assigned a location, armed with a homemade gun and a bullet. The identification evidence of the third State witness put him right at the scene. The second appellant's sworn evidence that he was alone some distance away on the other side of the mountain was dismissed as not convincing. Though there was no evidence that he fired any shots his presence was an intentional act of encouragement and acquiescence sufficient to make him a principal offender under Section 7 of the Criminal Code in respect of the nine offences of wilful murder that were committed.
GROUNDS OF APPEAL
7. There are six grounds of appeal:
(a) There was insufficient or inadequate evidence to prove beyond reasonable doubt the identity of the appellant Alois Erebebe at the scene of the crimes.
(b) The trial judge erred in placing too great a reliance on the uncorroborated evidence of [the wife of Mr Malamamo] on her prior knowledge of the appellant Alois Erebebe and the new evidence she gave to the court.
(c) The trial judge erred in failing to resolve the inconsistent evidence of the wife of Mr Malamamo] on the presence of the first appellant, Alois Erebebe at the scene of the crimes.
(d) The trial judge erred in failing to give due weight to the evidence called by the defence to support Alois Erebebe's alibi and the reason for his presence in Kainantu at the time of the killings.
(e) There was insufficient or inadequate evidence to prove that the appellant Taros Togote aided or abetted the killings.
(f) The trial judge should have acquitted the appellants of the charges of wilful murder after his findings that they were not the persons who actually did the killings.
GROUND (a) – INADEQUATE IDENTIFICATION EVIDENCE REGARDING FIRST APPELLANT
8. Mr Siminji, for the appellants, submitted that the trial judge erred by not recognising the danger of relying on the identification evidence of the two State witnesses. The evidence of Mr Malamamo's wife should not have been accepted because, if it was true that she was present in the cabin of the vehicle, which was driven by her husband when they were ambushed, she would have been too traumatised and terrified, especially as her husband was shot dead and some of her children were also killed, to be able to make an accurate identification of any of the attackers. She had a motive to lie as her husband and her children and other members of her family were victims so she would be inclined to say that one of the accused was one of the attackers. Furthermore her conduct after the incident cast doubt on the credibility of her evidence. She was picked up by the police on the day of the incident but did not name the first appellant, Alois Erebebe, as one of the attackers until two days afterwards. Her evidence that she recognised the first appellant, Alois Erebebe, as she knew who he was should not have been accepted as the only evidence of her prior knowledge of him was to do with her seeing him in Port Moresby two or three years before the incident. She also said that the person she identified as the first appellant, Alois Erebebe, had a cover over his face so this also cast doubt over the correctness of her identification. The second State witness was under similar nervous tension and to ensure his own survival rolled into a drain. He was not in a position to identify anyone with certainty. Further doubt over the credibility of the evidence of these two witnesses was created by the unlikelihood of their survival, given their evidence that they had seen the first appellant, Alois Erebebe. Why were they spared when almost all of the other people on the vehicle were killed?
9. Our immediate response to these submissions is that which we made to Mr Siminji in the course of the hearing: they are more in the nature of the submissions that a defence counsel would make at a trial rather than what an appellant's counsel should put to an appellate court. At the hearing of an appeal the primary duty of counsel is to identify alleged errors of fact or law made by the trial judge (which should have already been set out in a notice of appeal that clearly and succinctly identifies the alleged errors) and then to persuade the court where and how in the trial judge's decision-making process those errors have been made and why they call into question the safeness or satisfactoriness of the guilty verdict. As Bredmeyer J stated in John Jaminan v The State (No 2) [1983] PNGLR 318:
A judge in Papua New Guinea, unlike a jury in other countries, gives detailed reasons for his findings of fact. If he has erred in those reasons the appellant must point to the error or else argue that one the whole of the evidence the verdict should be set aside as unsafe and unsatisfactory.
10. Despite the lack of particularity in this ground of appeal we have carefully considered the submissions and examined closely the evidence that was before the National Court and the trial judge's reasons for accepting the identification evidence against the first appellant. His Honour applied the principles on assessment of identification evidence set out in the leading case, John Beng v The State [1977] PNGLR 115, heeding the warning about the inherent dangers of relying on the correctness of identification to support a conviction. His Honour considered the possibility that an honest witness can be mistaken and still be a convincing witness; and that a witness who is lying might also be convincing. In assessing the quality of the identification evidence, his Honour took into account whether the two State witnesses were purporting to identify a person who was a stranger or someone he or she recognised (they both gave evidence that they knew the accused, which his Honour regarded as credible testimony). His Honour also considered the traumatic circumstances which confronted the witnesses: the situation was conducive to chaos, panic and shock. His Honour emphasised that both State witnesses were convincing. In that regard we are conscious of the superior position of the trial judge to assess the credibility of witnesses (Brian John Lewis v The State [1980] PNGLR 219). No good reason has been provided to us to doubt the accuracy of his Honour's assessment of their credibility.
11. His Honour accepted the wife's evidence that she saw the first appellant, Alois Erebebe, who was wearing an army camouflage uniform, uncover his face as he reached into the glove-box of the vehicle and that she had eye contact with him at one stage. She heard him speak English to one of his accomplices, which evidence was consistent with the fact that the first appellant, Alois Erebebe, speaks English and gave his evidence in that language. We find nothing out of order in the way that his Honour assessed the identification evidence. His Honour acknowledged that if the alibi evidence was veracious, it would cast doubt on the value of the identification evidence; but that turned out not to be the case as the alibi evidence was of poor quality.
12. We find no error in his Honour's treatment of the identification evidence. There was no insufficiency or inadequacy in the evidence regarding the presence and actions of the first appellant, Alois Erebebe. We dismiss ground (a).
GROUND (b) – UNCORROBORATED IDENTIFICATION EVIDENCE
13. It is argued that the trial judge erred by placing too much weight on the uncorroborated evidence of Mr Malamamo's wife who testified that she knew the first appellant, Alois Erebebe, as she (who comes from Chimbu Province) had been married into Mohuveto village for 21 years, he was from that village, she had seen him at the village when he had gone there on leave and she had also seen and associated with him when she went to Port Moresby in previous years.
14. We see no merit in this ground of appeal. There is no rule of law or practice that the evidence of an identification witness as to how he or she was able to recognise the accused must be corroborated. No error of law on the part of the trial judge has been alleged, let alone established. We have already concluded that his Honour properly assessed the identification evidence. We dismiss ground (b).
GROUND (c) – INCONSISTENCY IN IDENTIFICATION EVIDENCE OT STATE WITNESSES
15. It is argued that Mr Malamamo's wife and brother gave inconsistent evidence in their identification of the first appellant, Alois Erebebe, in that one of them said that he had part of his face covered by a grass and mask whereas the other just referred to a mask.
16. We do not consider that this gives rise to any material inconsistency in their evidence but even if it is thought to be a material difference it is explicable by their observations being made at different points in time. In any event this argument was not raised by defence counsel at the trial and leave was not sought or granted to rely on it at the appeal so it cannot be entertained (The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). As we said in determining grounds (a) and (b) no error of law has been alleged, let alone established in regard to the trial judge's assessment of the identification evidence. We dismiss ground (c).
GROUND (d) – FAILURE TO GIVE ADEQUATE WEIGHT TO EVIDENCE OF ALIBI WITNESSES
17. This ground of appeal contains two separate arguments. First that the trial judge erred by failing to give due weight to the evidence called by the defence to support the first appellant's alibi. Secondly that his Honour erred by failing to give due weight to the reason for the presence of the first appellant in Kainantu at the time of the killings. No submissions were made in support of the second argument so our attention has been focussed on the first.
18. Mr Siminji submitted that his Honour erred in his treatment of the alibi evidence in three respects. First, he failed to take into account that there was no inconsistency in the evidence of the three alibi witnesses, all of whom said that the accused was in Kainantu at the touch rugby grand final on the afternoon of 21 November 1999. Secondly he drew an adverse inference as to the credibility of the witness Joripa Yubiko arising from the fact that that witness did not, for three and a half years while the accused was in remand, approach the police to give his story that the first appellant could not have been involved in the incident at Mohuveto as he was at Kainantu. Thirdly, his Honour failed to have regard to the principles to apply in determining the value and weight to be given to alibi evidence arising from the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318.
19. As to the first of those submissions it is not correct to say that his Honour took no account of the consistency in the evidence of the three alibi witnesses. His Honour noted that in particular the evidence of the first appellant's brother-in-law and sister-in-law was consistent; but that did not necessarily mean that it was truthful. His Honour formed the view that their evidence was rehearsed and based that assessment of their evidence on their demeanour. They spoke softly and were at times unsure. They avoided addressing the bench directly during their evidence. They were consistent as to the presence of the accused at Kainantu but when confronted with the allegations against him, showed ignorance. They were not convincing witnesses. His Honour was entitled to make that assessment of the alibi witnesses and draw the conclusion that this made their evidence unreliable notwithstanding the lack of inconsistency in their evidence.
20. The second submission is weightier. Mr Siminji has drawn our attention to the Supreme Court decision in Ipande Tonde v The State [1994] PNGLR 539, which stands for the proposition that a trial judge should not draw an adverse inference against an alibi witness if the witness has not given his or her story to the police before the trial: a failure to give an alibi statement to the police does not necessarily mean that the alibi evidence given in court lacks credibility. It is correct that the learned trial judge applied such a process of reasoning by stating:
The evidence of Joripa Yubiko in particular did not have any ring of truth but he expected police to come to him and kept quiet all these three and a half years when his brother-in-law was charged with the most serious offence that could put him on the death row.
21. We are satisfied that his Honour fell into error by drawing that adverse inference. The significance of the error, however, is lessened somewhat because his Honour – unlike the trial judge in Tonde, who did not make any assessment of the credibility of the alibi witness – did make an assessment of the demeanour of the witness, by stating:
That particular witness was voluble and appeared calculating in his testimony.
22. The facts of the present case can therefore be distinguished from those in Tonde, where the error committed by the trial judge was held to have had a fundamental effect on the manner in which he dealt with the State witnesses. Here there was an error but, because the trial judge made a discrete assessment of the credibility of the alibi witness concerned, we do not consider that it had a fundamental effect on the manner in which his Honour dealt with the State witnesses or the alibi witnesses or indeed, how his Honour determined the facts.
23. As to the third submission it is true that his Honour did not expressly refer to John Jaminan's case, which is properly regarded as the leading case on alibi evidence in Papua New Guinea. But his Honour was not obliged to cite the case specifically. What is important is whether he considered and assessed the alibi evidence in a manner consonant with the principles in Jaminan. Mr Siminji in his submission succinctly summarised key features of the Jaminan principles in the following way:
24. We do not consider that his Honour offended against those principles when rejecting the alibi evidence. His Honour's judgment showed no signs of shifting the burden of proof away from the prosecution. Nor did his Honour place the onus of proving the alibi or proving innocence on the accused. His Honour noted that there was alibi evidence, summarised it on its merits and concluded, by rejecting it, that it was of no value, especially when it was weighed against the identification evidence, which his Honour considered was convincing, and other incriminating evidence against the first appellant. His Honour did not at any stage of his judgment state or indicate that because he was rejecting the alibi, a conviction should be entered. He was satisfied by a proper and orderly process of judicial reasoning, based on the evidence presented by the State, that the prosecution had proven its case beyond reasonable doubt. The third submission has no merit.
25. We conclude that the learned trial judge made no substantial error in his treatment of the alibi evidence. However, because his Honour erred by drawing an adverse inference against the credibility of the evidence of one of the three alibi witnesses owing to that witness's failure to give his story to the police prior to the trial, we uphold ground of appeal (d) to that extent. We dismiss ground of appeal (d) in all other respects.
GROUND (e) – INSUFFICIENT EVIDENCE THAT SECOND APPELLANT AIDED OR ABETTED THE KILLINGS
26. This ground of appeal focuses on alleged errors of law made by the trial judge in convicting the second appellant, Taros Togote. The argument is that there was insufficient or inadequate evidence to prove that he aided or abetted the killings, in five respects. First, there was no evidence that the second appellant was at the meeting that aimed to stop the deceased Mr Malamamo from delivering guns to the village. Secondly, even if the court properly found as a fact that the second appellant was at that meeting, that does not of itself lend any support to him aiding or abetting the killing that occurred during the afternoon of that day. Thirdly, the trial judge did not make a specific finding as to the nature of the second appellant's participation in the killings. Fourthly, there was clear evidence that the second appellant was far away from the scene of the killings, so he withdrew from the scene and therefore cannot be caught by Section 7 of the Criminal Code and deemed to have committed the offences that were committed by others. Fifthly, even if the court correctly found that he was present, the trial judge erred by regarding proof of presence alone as sufficient to support a conviction.
27. As to the first of those submissions it is not correct to say that there was no evidence that the second appellant was at the meeting that aimed to stop the deceased Mr Malamamo from delivering guns to the village. He was at the meeting, at the village on the morning of the incident, on his own admission, made in his record of interview, which was admitted into evidence without objection. He repeated the admission in cross-examination. The prosecutor, Mr Kesan, asked him 'And at that meeting you people planned to kill Jerry Malamamo, is that true?' His answer was 'Yes'.
28. The second submission seeks to underplay the role of the meeting by suggesting that even if it is accepted that the second appellant was present, that does not of itself lend any support to him aiding or abetting the killings that occurred later. We see no merit in that submission. The purpose of the meeting clearly emerged from the evidence: to make a plan to ambush and kill Mr Malamamo. The trial judge highlighted the following questions and answers in the second appellant's record of interview:
Q 5 I must remind you again that you are not obliged to say anything in answer to my questions. You can remain silent if you wish to. Do you understand?
A 5 I understand but can I just say something. The trouble started when four of our people were killed. The enemy surrounded our house and killed us. ...
We left the village and ran away and remained away from home for one year, when we returned back to our village and settled down. We made gardens and homes. Then Samoa Lope and Yose'e Miorifa came and told Tutuma that Jerry Malamamo had spent about K40,000.00 on weapons and ammunition.
These two told Tutuma that with the weapons Jerry Malamamo was purchasing, the whole tribe would be wiped out. This was told on Sunday, the same day Jerry lost his life. It was around 11.30 or 12 noon when this message was relayed to Tutuma. Tutuma then summoned us together and told us this news. From there we made plans to block the road and Ken Triga planned the whole ambush and told us where to position ourselves. We stayed at the ambush site for about an hour when Jerry and the others drove by. I heard gun shots and I knew they had killed Jerry because the three of us were standing in the bushes. Our main aim was to stop Jerry transporting weapons to his tribe to use against us, that was the reason why we blocked the road and killed Jerry. ...
Q18 When you were told about this intention to kill Jerry, what were your thoughts at that time?
A 18 We had a quick discussion and from what we heard, we knew our tribe and our families do not stand a chance against the enemy.
Q 19 Were you happy to execute the plan and go along with the others?
A 19 The elders pushed us to kill Jerry so every one of us agreed and we went ahead with the plan.
Q 20 I am sure you are aware that there is a law against the killing of others and the same is in the Bible, so what made you do what you did?
A 20 We thought back to how they had killed our people and that convinced us to execute our plan to kill Jerry.
29. That was clear evidence of the plan to ambush and kill Mr Malamamo. The presence of the second appellant at the meeting, by itself, lends support to the proposition that he aided and abetted those who killed the deceased.
30. As to the third submission it is not correct to say that the trial judge made no specific finding about the nature of the second appellant's participation in the killings. His Honour found that the second appellant was:
31. In the course of making those findings of fact his Honour rejected as not convincing the second appellant's evidence that he was alone some distance away and did not know what happened on the other side of the mountain where the killings took place; and accepted the identification evidence of the third State witness, which put him right at the scene. We find all these findings to have been reasonably open to the trial judge upon the evidence that was adduced. There has been no failure to make specific findings about the nature of the second appellant's participation in the killings.
32. The fourth submission – that there was clear evidence that the second appellant was far away from the scene – must be rejected. Though there was evidence, from the second appellant, that he was far away from the scene, it was not clear evidence and it was properly rejected by the trial judge due to his Honour's assessment of the unconvincing nature of the second appellant's testimony and his acceptance of the credibility of the third State witness's evidence, which put the second appellant right at the scene.
33. The fifth submission, which asserts that his Honour erred by regarding proof of presence as sufficient to support a conviction, requires careful analysis because if the trial judge had regarded the second appellant's presence at the ambush as sufficient proof that he aided those who killed the deceased, an error may have been committed. Mr Siminji has rightly referred to the principle highlighted in Agiru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37 (and applied in, for example, Sir Arnold Amet v Peter Charles Yama (2010) SC1064, The State v John Badi Woli and Pengas Rakom [1978] PNGLR 51, The State v Thomas Lui (2004) N2706, The State v Alwyn Wani (2010) N3968 and The State v Kevin Peteru (2011) N4233) that presence at the scene of a crime does not by itself amount to aiding or abetting. To give rise to aiding or abetting, a person's presence must carry two components:
34. His Honour, though not expressly referring to the principle in Aieni's case, sufficiently indicated that he had alerted himself to the requirements of that principle and applied them, through the terms of his final address to the second appellant and his conclusion that the second offender was liable under Section 7 of the Criminal Code for the death of all of the deceased. In the final address his Honour stated:
And you Taros Togote I also found that you were there and largely from your own admissions you knew of the pan to kill and you knew of the ambush that was set up and you knew of the presence of high-powered guns and other weapons that were to be used in the killing and you also knew there were others armed with knives. So even if you are some distance away, which I infer from your own admission you were positioned on a location, your presence encouraged the others to do what they did.
35. In the conclusion as to Section 7 of the Criminal Code his Honour stated:
His [the second appellant's] presence in my view was an intentional act of encouragement and acquiescence sufficient to make him a principal offender under Section 7 for the death of Jerry and the eight others.
36. His Honour did not regard the second appellant's presence as sufficient to support a conviction. He found not only that the second appellant was present, but that his presence gave encouragement to those who killed the deceased and that he intended to give encouragement to them. No error of law has been established.
37. We find no error in his Honour's treatment of the evidence against the second appellant and the finding that he was present at the crime scene, that he encouraged others to do what they did and that his presence was an intentional act of encouragement. His acts and intentions were founded on his involvement in the plan to kill the deceased, Mr Malamamo, his knowledge of the ambush and that high-powered guns and knives would be used. There was no insufficiency or inadequacy in the evidence regarding the presence and actions of the second appellant, Taros Togote. We dismiss ground (e).
GROUND (f) – FAILURE TO ACQUIT THE APPELLANTS AFTER FINDING THAT THEY DID NOT COMMIT THE KILLINGS
38. It is argued that the trial judge should have acquitted the appellants after finding that they were not the persons who actually killed the deceased. This ground of appeal is based on the false premise that the trial judge made a finding that the appellants were not the persons who actually killed the deceased. The finding, to be precise, was that it was not proven that either appellant had killed any of the deceased. Be that as it may the argument that his Honour was obliged to acquit the appellants in the absence of a finding that they killed any of the deceased is unsustainable in view of Section 7(1) (principal offenders) of the Criminal Code, which states:
When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a) every person who actually does the act or makes the omission that constitutes the offence; and
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c) every person who aids another person in committing the offence; and
(d) any person who counsels or procures any other person to commit the offence.
39. Sections 7(1)(b) and 7(1)(c) are the key provisions. A person may be charged with actually committing an offence and shall be deemed to have taken part in committing it and to be guilty of the offence if he:
40. There was sufficient evidence before the court to allow the trial judge to conclude beyond reasonable doubt that both appellants did acts for the purpose of enabling and aiding other persons to commit offences and that both appellants aided those persons in committing the offences. The offences that his Honour found to have been committed were nine offences of wilful murder. His Honour found that all elements of wilful murder were present in respect of each death that occurred: each of the deceased was killed unlawfully by a person who intended to cause death. No error of law is alleged in respect of his Honour's finding that nine offences of wilful murder had been committed; and we find that no error of law was involved in his Honour's conclusion that both appellants were perforce of Section 7 of the Criminal Code guilty of nine counts of wilful murder. We dismiss ground (f).
CONCLUSION
41. We have entirely dismissed five of the six grounds of appeal ((a), (b), (c), (e) and (f)). We partially upheld and partially dismissed one ground, (d), because we considered that the trial judge erred in law by drawing an adverse inference against the credibility of the evidence of one of the first appellant's three alibi witnesses owing to that witness's failure to give his story to the police prior to the trial. We must now address the consequences of that error. Does it mean that the appeal by the first and/or the second appellant should be allowed? That question must be resolved by reference to Sections 23(1) and 23(2) of the Supreme Court Act, which state:
(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—
(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.
(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
42. The combined effect of these provisions is that the Supreme Court is obliged to allow an appeal if it thinks that any of Sections 23(1)(a), (b) or (c) apply, unless Section 23(2) applies, that is, it considers that no miscarriage of justice has actually occurred (in which case it may dismiss the appeal). If it thinks that none of Sections 23(1)(a), (b) or (c) applies it must dismiss the appeal.
43. As to Section 23(1)(a) we do not think that under all the circumstances of the case the verdict of guilty of nine counts of wilful murder against either appellant should be set aside on the ground that it is unsafe or unsatisfactory. 44. We would need to be satisfied that there is in all the circumstances a reasonable doubt, not merely a lurking doubt, as to the safeness or satisfactoriness of the verdict (John Beng v The State [1977] PNGLR 115, Stanley Poke v The State (2010) SC1055). It has been established that the trial judge made just one error of law in drawing an adverse inference about the credibility of one of the first appellant's three alibi witnesses, and we have determined that, because his Honour made a discrete assessment of the credibility of that witness, it had no fundamental effect on the manner in which his Honour dealt with the State witnesses or the alibi witnesses or indeed, how his Honour determined the facts. It had no effect on the outcome of the trial. We have no reasonable doubt as to the safeness or satisfactoriness of the verdicts. As to Section 23(1)(b), if we were to regard the trial judge's single error as a wrong decision on a question of law, it does not, for reasons we have already given, warrant the judgment of the National Court being set aside. Section 23(1)(c) does not apply as no irregularity in the course of the trial has been shown to have occurred. We conclude that none of Sections 23(1)(a), (b) or (c) applies. Therefore both appeals must be dismissed.
REMARKS
45. This is an extremely serious case involving unsuccessful appeals by two persons against their conviction for the wilful murder of nine people. In light of the pending cross-appeal by the Public Prosecutor against sentence, in which this Court will, it appears, be asked to consider imposing the death penalty on those two persons, we consider it necessary for the Public Prosecutor and the Public Solicitor, as Law Officers of Papua New Guinea under Section 156 of the Constitution, as independent constitutional office-holders and as leaders of the constitutional institutions for which they are each responsible, to appear personally and to prosecute and defend the cross-appeal respectively.
ORDER
(1) Each appeal against conviction is entirely dismissed.
(2) The Public Prosecutor's cross-appeal against the sentences, filed on 23 September 2003, shall be added forthwith to the Callover List under Order 13, Rule 7 of the Supreme Court Rules and dealt with accordingly.
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Public Solicitor: Lawyer for the Appellants
Public Prosecutor: Lawyer for the Respondent
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