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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV NO 61 OF 2008
ILAI BATE
Applicant
V
THE STATE
Respondent
Waigani: Injia CJ, Cannings J, Gabi J
2012: 28 August, 29, 30 October, 20 December
CRIMINAL LAW – identification evidence – requirement to take account of inherent dangers in relying on identification evidence – when appropriate to regard identification as recognition – quality of identification evidence – relevance of identification witness being intoxicated – relevance of lighting to quality of identification evidence – whether corroboration necessary.
CRIMINAL LAW – consideration of defence evidence – recognition of apparent inconsistencies in evidence – whether adverse inference can be drawn against accused who gives evidence after exercising right to remain silent in police interview – trial judge's duty to set out elements of offence.
The applicant was convicted after trial of one count of manslaughter. The trial judge relied on identification evidence by the State witness who identified the applicant as the person who attacked the deceased, killing him, regarding that evidence as succinct and of high quality and taking into account that the defence had provided no reason for the State witness giving false evidence and that he had been threatened. The trial judge rejected completely evidence by the applicant and his parents which put the applicant away from the crime scene at the critical time, regarding that evidence as not credible as it contained too many inconsistencies and was a story not told in the applicant's police interview (in which he had remained silent). The applicant was granted leave to argue that the trial judge erred in law in two respects. First, by regarding the identification evidence as being of high quality when it was not. Secondly, by giving insufficient weight to the defence evidence.
Held:
(1) A trial judge must be alert to the inherent dangers of relying on the correctness of identification to support a conviction and issue an appropriate self-caution and carefully assess the quality of the identification evidence.
(2) In assessing identification evidence, relevant considerations include: that an honest witness can be mistaken and still be convincing; that an identification witness must be both honest and accurate; whether the evidence is corroborated; whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused; the emotional state of the witness at the time of the incident; the prevailing conditions; the line of sight (John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 applied).
(3) A trial judge must ensure that the accused is presumed innocent until proven guilty according to law and to that end must ensure amongst other things that sufficient weight is given to the defence evidence, that the constitutional right of an accused to remain silent is enforced and that the elements of the offence being tried are accurately set out and applied.
(4) As to the first ground of review: the trial judge gave an adequate self-caution as to the danger of entering a conviction on the basis of identification evidence, but erred in fact by treating this without justification as a case of recognition, as distinct from identification; disregarding two significant aspects of the evidence that reduced the reliability of the identification evidence; finding without sufficient evidence that the crime scene was well lit; finding without sufficient evidence that the State witness had been threatened and approached by the applicant; and not requiring corroboration of the identification evidence.
(5) As to the second ground of review: the trial judge erred in fact by misapprehending three significant aspects of the evidence of the defence witnesses, erred in law by drawing an adverse inference against the accused for exercising his right to remain silent and erred in law by not setting out the elements of the offence being tried.
(6) Both grounds of review having been substantially upheld, the application for review was granted and the Court, having adopted provisions of the Supreme Court Act relating to determination of appeals (as distinct from reviews), concluded that the guilty verdict was unsafe and unsatisfactory and there had been a miscarriage of justice and ordered a new trial.
Cases cited
The following cases are cited in the judgment:
Alois Erebebe & Taros Togote v The State (2011) SC1135
Biwa Geta v The State [1988-89] PNGLR 153
Charles Ombusu v The State [1997] PNGLR 699
Devlyn David v The State (2005) SC881
Fred Bukoya v The State (2007) SC887
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
Onama Andrew v The State (2009) SC997
Oscar Tugein v Michael Gotaha [1984] PNGLR 137
Patrick Towingo v The State (2008) SC983
Stanley Poke v The State (2010) SC1055
The State v Henry Osare Kales (2001) N2115
The State v Ilai Bate (No 1) (2008) N3555
The State v Ilai Bate (No 2) (2008) N3556
REVIEW
This was an application under Section 155(2)(b) of the Constitution for review of a conviction for manslaughter.
Counsel
D K Mamu, for the applicant
D Mark, for the respondent
20 December, 2012
1. BY THE COURT: This is a review of a conviction for manslaughter. The applicant, Ilai Bate, originally lodged an appeal against his conviction but it could not be heard as an appeal as it was filed outside the 40-day limit set by the Supreme Court Act. He has been granted leave to apply for review of the National Court's decision by the Supreme Court under Section 155(2)(b) of the Constitution.
THE TRIAL
2. The applicant was on 18 September 2008 found guilty by the National Court at Alotau of unlawfully killing the deceased, Trent Wesley, aged 21 years, at Garuboi Street, Alotau. The incident that led to the death occurred in the early hours of Saturday 5 May 2007. The Court found that the applicant killed the deceased by attacking him with a crowbar, which penetrated his head and caused a depressed skull fracture and extensive herniation of brain matter from the dura. The trial judge relied on identification evidence by the sole State witness who identified the applicant, who was 23 years old at the time of the trial, as the person who attacked the deceased, regarding that evidence as succinct and of high quality and taking into account that the defence had provided no reason for the State witness giving false evidence and that the witness had been threatened.
3. The trial judge rejected evidence by the applicant and his parents which put the applicant away from the crime scene at the critical time, regarding that evidence as not credible as it contained too many inconsistencies and was a story not told in the applicant's police interview, in which he had remained silent.
4. The applicant was indicted on a charge of wilful murder but the trial judge held that the State proved neither an intention to kill nor an intention to do grievous bodily harm and entered a conviction for manslaughter (The State v Ilai Bate (No 1) (2008) N3555). The applicant was sentenced to 20 years imprisonment (The State v Ilai Bate (No 2) (2008) N3556). He is not seeking review of the sentence. The review is only of his conviction.
GROUNDS OF REVIEW
5. The applicant has been granted leave to argue two grounds of review. They were drafted by the applicant himself and are not clearly expressed. His counsel Mr Mamu has requested that they be treated as alleging two categories of errors of law on the part of the trial judge and, as no objection has been raised by counsel for the respondent Mr Mark, we grant the request and will deal with them as follows.
6. Ground # 1, which alleged "that there was a miscarriage of justice in that the learned trial judge has convicted me on uncorroborated evidence of a front line enemy who has every reason to fabricate or invent new theories upon which my conviction was sustained" is treated as an argument that the trial judge erred in fact and law by regarding the identification evidence as being of high quality when it was not.
7. Ground # 2, which alleged "that the learned trial judge misconceived or wrongfully conceived the defence evidence upon which she constructed a hypothesis negating or destroying the credibility of the defence evidence resulting in my wrongful conviction", is treated as an argument that the trial judge erred in fact and law by giving insufficient weight to the defence evidence.
GROUND 1: REGARDING THE IDENTIFICATION EVIDENCE AS OF HIGH QUALITY WHEN IT WAS NOT
8. Mr Mamu submitted that the trial judge erred in law and fact by:
(a) giving an inadequate caution;
(b) treating this as a case of recognition;
(c) disregarding evidence that reduced the reliability of identification;
(d) finding that the crime scene was well lit;
(e) finding that the State witness had been threatened;
(f) convicting on uncorroborated identification evidence.
(a) Giving inadequate caution
9. It was submitted that the trial judge was not sufficiently alert to the inherent danger of entering a conviction on the basis of identification evidence and though a 'self caution' was administered it was inadequate.
10. It is settled law as explained by the Supreme Court in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 that there is an inherent danger in convicting an accused on the basis of identification. The trial judge should by his or her reasons for decision demonstrate that that danger is recognised and heeded. This is done by administering a 'self caution'. It is the sort of caution that a judge would give to a jury in jurisdictions that have trial by jury. In PNG we have no juries. The judge is the tribunal of fact as well as of law. So the judge is expected to caution himself or herself as a matter of self-discipline and as a means of demonstrating through his or her judgment that the principles on identification evidence have been applied.
11. The trial judge should indicate that the court is mindful of the risks involved but that if the quality of the identification evidence is good the matter should proceed to verdict; and if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. The judge's reasons should show an awareness of the possibility that an honest witness can be mistaken and still be convincing. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.
12. Here, the trial judge summarised the competing evidence. On the one hand the sole State witness testified that he fought with the applicant's brother and then he was chased by a number of people including the applicant who swung a crowbar at him (which missed) and then he (the State witness) jumped into the back of a utility, where the deceased was. The applicant swung the crowbar again and on this occasion the deceased received the full force of the blow in his head. The State witness said that he recognised the applicant as the person who swung the crowbar as he had lived next door to him in Kiriwina Street, Alotau for seven years and that he had been fighting with him for 20 to 30 minutes between Kiriwina Street and Garuboi Street and that there were streetlights and also a light at the canteen near the vehicle.
13. On the other hand the applicant testified that he was never at the spot where the crowbar was thrown and did not chase the State witness. He was asleep when the fight started and he only woke up when his mother called out and went outside the front of their house to assist his injured brother. His mother and father gave evidence corroborating the applicant's version of events.
14. The trial judge outlined the principles of identification evidence and addressed the inherent danger of entering a conviction based on such evidence in these terms:
[The State witness] said he recognized the accused because he used to reside for 7 years on the same street as the accused. He said that night the canteen lights and the street lights were on so he could see who his attackers were.
The accused however said there were no street lights on that night. Neither party have brought independent evidence on the existence or not of street lights that night. So whom can I believe? It means that I must then have recourse to the law of identification. The principles on the law of identification is well established in this jurisdiction, more particularly the case John Beng v The State [1977] PNGLR 115 where Kearney J held that recognition is not the same as identification although the weight to be granted to it depends on the length and degree of prior acquaintance. In that case, Kearney J developed the principles to be taken into account when assessing the accuracy of witnesses' evidence:
"What opportunities the person identifying had to form a judgment of the identity of the person who committed the crime ... position of the parties, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification."
Although there are dangers inherent in identification evidence, I also remind myself that recognition is more reliable than identification of a stranger (The State v Kauva Lavau and Kamo Kauva (1996) N1523 but mistakes in recognition of even close relatives and friends can be made (John Beng v The State (supra)).
15. We agree that the caution could have been more clearly expressed. However we cannot say that it was as a matter of law inadequate. The trial judge referred to the leading case of Beng and reference to that case together with the trial judge's elaboration of some of its principles was an adequate self-caution. There was no error of law in that regard.
(b) Treating this as a case of recognition
16. Mr Mamu submitted that the trial judge erred by treating this as a case of recognition, as distinct from identification. We uphold this argument as we consider that the trial judge placed considerable emphasis on the fact that the State witness recognised the applicant as a result of unquestioning acceptance of the State witness's evidence that he had lived next door to the applicant for seven years. That evidence was uncorroborated and vague (no evidence was given as to the year that the witness moved into Kiriwina Street or the year he left) and should have, in our view, been subject to greater scrutiny before being accepted.
17. We note, as pointed out by Mr Mamu, that the State witness in cross-examination could not say with certainty who was the older of the applicant and his brother (the person with whom the State witness was fighting before the deceased was attacked) and could not remember the name of the street in which he lived. The difficulty experienced in answering what should have been simple questions for a person who lived next door to a family for seven years made questionable his ability to recognise one member of the family as the attacker, and should have been a signal that his evidence needed to be treated with caution.
18. Moreover, in the course of finding that the State witness had been living next to the applicant's family for seven years and was able to recognise the applicant, the trial judge disregarded conflicting evidence from the applicant's mother that her family had been living in Kiriwina Street for 30 years and that the State witness was living next door to the family before the applicant was born and that the applicant had moved to Port Moresby and been raised by her brother there for most of his life, only coming back to Alotau about one year before the date of the incident at the centre of the trial. No reason was given for ignoring the mother's evidence or for ignoring the applicant's evidence that he only knew that the State witness lived in Kiriwina Street a long time ago as he was told that by his parents. The mother's evidence as to the applicant's movements at the time of the incident was rejected but the trial judge did not state that all of her evidence was tainted or unreliable or unworthy of consideration. It was significant evidence on a contentious question of fact, so there existed an obligation to assess it and weigh it against the State witness's evidence. The obligation was not discharged.
19. We uphold the argument that the trial judge erred by finding as a fact that the State witness recognised the applicant and by treating this as a case of recognition, as distinct from identification evidence.
(c) Disregarding evidence that reduced reliability of identification
20. We uphold the submission of Mr Mamu that the trial judge disregarded two aspects of the evidence that were relevant to the quality of the identification evidence.
21. First there was clear evidence that the State witness was intoxicated. He testified that he had been drinking at the Cameron Club since the afternoon of 4 May. The incident leading to the death of the deceased occurred at 2.00 am on 5 May, so the evidence was that the State witness had been drinking for a considerable period, in the order of eight to twelve hours. He was according to his evidence involved in three separate but closely connected violent incidents, first with the applicant's brother, secondly with the applicant and finally he was present when the deceased was struck with the crowbar. A reasonable inference to draw from this is that he was quite drunk and that this would have impaired his capacity to identify the deceased's attacker and to recall accurately what happened.
22. Secondly, according to the State witness's evidence his fight with the applicant's brother, Daniel Bate, started outside the canteen in Garuboi Street and resulted in his chasing Daniel towards the applicant's family's house in Kiriwina Street where they had a scuffle and Daniel called out for help. Neighbours came out together with the applicant who was armed with the crowbar (which was later thrown at the deceased). The applicant swung the crowbar at him three times but he managed to avoid it. The State witness was chased back to Garuboi Street to his vehicle, which was near the canteen. His evidence was that he did not turn his back on those who were chasing him. He was, however, outnumbered and dealing with an angry mob who were throwing bottles, sticks and stones at him. The evidence was that this was a traumatic incident in which the State witness was placed under great stress, which would have made it difficult for him to see what was happening and remember with accuracy the train of events.
23. The trial judge disregarded these two significant aspects of the evidence, both of which tended to reduce the reliability and quality of the identification evidence. There was an error of law in that regard.
(d) Finding that the crime scene was well lit
24. The trial judge made findings as to the amount of light available at the crime scene as part of the conclusion that the State witness's identification evidence was accepted, stating:
25. The trial judge thus made two findings regarding the amount of light at the scene: it was a moonlit night and that there were street lights that night. We uphold the submission of Mr Mamu that there was no evidence at all to support the finding that it was a moonlit night. Our examination of the transcript reveals that the presence or absence of moonlight and the amount of moonlight (eg whether it was a full moon or quarter moon or whether it was a cloudy night) was not mentioned by any of the witnesses.
26. As to the finding that there were street lights, the State witness gave evidence of their presence but did not specify whether the lights were in Kiriwina Street or Garuboi Street or both. The applicant's evidence was that though at the time of trial there were lights there were none at the time of the incident in Kiriwina Street or Garuboi Street. The only lights were at the canteen compound. Two lights had been installed in Kiriwina Street since the incident. In light of this conflicting evidence the trial judge should have given reasons for preferring the State witness's evidence to that of the applicant and specified which street(s) were lit.
27. We find that the trial judge erred in fact in concluding that the crime scene was well lit and that the degree of lighting assisted the State witness in being able to recognise the person who attacked the deceased.
(e) Finding that the State witness had been threatened
28. Mr Mamu submitted that the trial judge erred in fact by making unjustified findings that the State witness had been threatened and asked by the applicant to go and see him and his family. The findings came soon after the trial judge held that the evidence of the applicant's parents "cannot be believed" and that the State witness, by contrast, "told his story succinctly without hesitation". The trial judge continued:
The accused and his witnesses have not told the Court why [the State witness] would come to Court and make such serious allegations against the accused. Apart from that, the deceased is the local parliamentarian's son, so again, why would he make these allegations against the accused.
The good evidence is also that [the State witness] had received threats and was also asked by the accused to go and see him and his family. [The State witness] told him that he could not change anything in the statements he had given to the Police.
29. We have examined the transcript and note that the State witness's only evidence of being interfered with in a way that could be regarded as receiving threats was at the end of re-examination. The prosecutor Mr Kaluwin in response to a proposition put to the State witness by defence counsel Ms Yayabu that he (the State witness) had threatened the applicant, introduced the subject of threats in these terms:
Q: My friend, this lawyer asked about the accused receiving threats. You said you did not know anything about it?
A: That is right.
Q: How about yourself, have you received any threats or interferences?
A: Some interference.
Q: Tell the court.
A: I was asked to – if I could see them which I told the guy who approached me to - - -
Q: Say it loud.
A: I was asked if I could see them and I told the guy who approached me and asked me to see them that I cannot change anything. My statements have been submitted and it is in court already.
Q: All right. When you said you were asked to see them, who is them?
A: Ilai [the applicant].
Q: No other questions, your Honour.
30. That was the end of the State witness's evidence. The only other evidence in connection with the claim that the State witness was threatened came in cross-examination of the applicant when the prosecutor put to him that while he was on bail one of his family members (not the applicant himself) sent word to the State witness about the case and met him at a hotel in Alotau and bought him a carton of beer. The applicant denied that those things had happened.
31. We find no basis for the finding that the State witness had received threats and insufficient evidence (as there were no details of place, date or time and no corroboration and there was contrary evidence by the applicant) for the finding that the State witness had been asked by the applicant to go and see him and his family. The trial judge fell into error in making those findings.
(f) Convicting on uncorroborated identification evidence
32. Mr Mamu submits that the fact that the evidence of the State witness was uncorroborated made it particularly dangerous to enter a conviction and that the trial judge erred by not being alert to this added danger.
33. There is no rule of law or practice that evidence of an identification witness must in every case be corroborated (Alois Erebebe & Taros Togote v The State (2011) SC1135, The State v Henry Osare Kales (2001) N2115). It is the overall quality of the identification evidence that is the significant criterion, not whether it is corroborated. However, a witness's identification evidence must be assessed on its merits and if its quality is not high or the prevailing circumstances create doubt as to its reliability, corroboration will invariably be required. Here, we consider that the trial judge by making several errors of fact incorrectly concluded that the identification evidence was of high quality and by doing so overlooked the need, if proper consideration had been given to the prevailing circumstances, for corroboration of the State witness's evidence.
34. Corroborative evidence should not have been difficult for the State to obtain. The State witness testified that he was chased by an angry mob including the applicant (who was armed with the crowbar) from Kiriwina Street to Garuboi Street and that when he jumped onto the back of the vehicle, there were a number of people present. There were already two other people in the back of the vehicle. When he saw the crowbar being thrown towards him he managed to duck and push one of the two persons down but he could not save the other person, the deceased, who was struck in the head. It is curious that the other person who survived (who the State witness said was in the back of the vehicle) was not called to give evidence or that a member of the mob that chased the State witness or one of the bystanders near the vehicle was not called.
35. We find that the trial judge erred by accepting without corroboration identification evidence that was insufficiently reliable.
Conclusion re ground 1
36. We substantially uphold the first ground of review as we have upheld five of the six arguments advanced for the applicant. We find that the learned trial judge erred in fact by treating this without justification as a case of recognition, as distinct from identification; disregarding two significant aspects of the evidence that reduced the reliability of the identification evidence; finding without sufficient evidence that the crime scene was well lit; finding without sufficient evidence that the State witness had been threatened and approached by the applicant; and not requiring corroboration of the identification evidence. We conclude that those errors were made in the course of accepting the identification evidence of the State witness and treating it as recognition evidence and that they were significant errors of fact and law.
GROUND 2: GIVING INSUFFICIENT WEIGHT TO THE DEFENCE EVIDENCE
37. It is submitted by Mr Mamu that the trial judge erred in law and fact by:
(a) misapprehending evidence of the defence witnesses;
(b) drawing an adverse inference against the applicant for exercising the right to remain silent during his police interview;
(c) failing to set out the elements of the offence and link the evidence to each element.
(a) Misapprehending evidence of defence witnesses
38. Mr Mamu submits that the trial judge misapprehended three aspects of the defence case: (i) by finding an inconsistency in the evidence as to who assisted the applicant's brother; (ii) by finding that no explanation was given by the applicant's family for keeping their crowbar in their garden; and (iii) by finding an inconsistency in the applicant's mother's evidence as to ownership of a vehicle.
(i) Who assisted the applicant's brother?
39. It was the defence case that the applicant was never at the spot in Garuboi Street where the deceased was attacked. Instead:
40. The trial judge dealt with this aspect of the evidence as follows:
Who "speared" the deceased Trent Wesley? Although [the State witness] is adamant that he recognized the accused as being the wielder of the crowbar that inflicted the fatal blow, the accused maintains that he was with his parents when that occurred. His parents maintain the same story.
First, no doubt this is a case that rests very much on whom the Court should believe. It is also a case of the weighing up of evidence and drawing inferences where necessary.
For the State, [the State witness] is the only witness and also the person who was actually involved in the fight. Before I make conclusions on his evidence in relation to identification or recognition of the accused, I will review the accused's parents' evidence, who were the accused's only witnesses.
They say [the State witness] chased their son Daniel Bate, assaulted him and he fell to the ground. Then, Daniel Bate called out for help which prompted his parents and the accused to come out of their house. They said at that point, Daniel Bate was exchanging punches with [the State witness] when his mother heard Daniel Bate call out to them for help. The accused said his Dad and him helped his brother into the house. He said his mother was not with them. However, in her evidence, the accused's mother, Priscilla Bate, said she assisted her son into the house also. That is an inconsistency in their evidence. [Emphasis added.]
41. The trial judge thus identified an inconsistency between on the one hand the evidence of the applicant – who said that his Dad and him helped his brother into the house and that his mother was not there – and on the other hand the evidence of the applicant's mother – who said that she assisted her son into the house also.
42. Was that an accurate summary of the evidence? During evidence-in-chief the mother was asked what happened when she and her husband and the applicant came out of the house to assist Daniel. She stated:
Just in front of our next door neighbour's house, my son was lying in a pool of water, Daniel Bate. So, me and my husband and the brother lifted him up, sat him up and then the brother left us. Ilai Bate ran towards the person who hit him, later we learnt it was [the State witness].
JUDGE: Left you and what, went?
Ran after the person who hit our son, later we were told it was [the State witness]. And then I helped my husband, we lifted our son out of the pool of water and then I left him holding him then I turned, started calling if Ilai should come back and help the father. At the same time the crowd was already at the corner where the road going to Niugini compound and the road going to the canteen side, they started fighting there. When I left I ran towards the crowd. ...
43. In cross-examination the witness gave similar evidence: she followed the crowd to the spot where the State witness jumped into the vehicle and did not see the applicant again until she returned to the house.
44. We agree with the submission of the applicant's counsel that the mother did not say that she assisted Daniel into the house. The trial judge misapprehended the evidence and wrongly concluded that there was an inconsistency in the defence case.
(ii) Any explanation for keeping crowbar in their garden?
45. It was undisputed that the weapon used to kill the deceased, which was admitted into evidence as an exhibit and referred to as a crowbar, was actually a gardening tool, a steel rod shaped like a mini-spade at one end, commonly used for digging soil and planting yams, particularly by Trobriand Islanders. The defence witnesses gave evidence that they owned such a tool but did not keep it at the house. The trial judge dealt with their evidence as follows:
The evidence from the accused and his parents is that this tool is owned by a lot of Trobriand Islanders and used to dig up the soil to plant yams. However, their evidence is that although they own one, they do not keep it at home, preferring to "hide" it in the garden, although they would take other gardening tools home like spades, knives, shovels, etc. They also say that if they had to, they would transport the tools in a taxi. Why would they keep the crowbar out of their house, amongst all their other tools? Is it to tell the Court that on that fateful night, the crowbar could not have been at their house? It is odd that they would single out the crowbar only from all their gardening tools. And what is most perplexing is that they have not said why they do that. [Emphasis added.]
46. In fact the applicant's mother provided an explanation for leaving their gardening crowbar at their garden, which was out of town. In cross-examination she stated:
Like it is too heavy to carry from here to the garden, you know, every morning or every time of going to the garden.
47. She was not pressed further and the other defence witnesses were not questioned as to why their crowbar would be kept at the garden. In these circumstances we uphold the submission that the trial judge misapprehended the defence case by finding that no explanation was provided by the defence witnesses for their crowbar not being at their house in Kiriwina Street and drawing an adverse inference regarding the credibility of the defence case due to the failure to provide such an explanation.
(iii) Did the applicant's family own a vehicle?
48. In the course of cross-examination of the applicant's mother, after asking whether the applicant's family kept a digging crowbar at their house in Kiriwina Street, the prosecutor Mr Kaluwin asked her whether the family owned a vehicle. She answered that question by referring to a vehicle. Later in cross-examination Mr Kaluwin asked her about how she came to know about Trent Wesley's death. She replied by referring to the applicant picking up passengers in a taxi.
49. The trial judge dealt with this aspect of the evidence as follows:
As for the vehicle, a question was asked by the State's Counsel as to how they transported their tools to their garden at Butulega, several kilometres away. The accused's mother said they did not have a vehicle. However, later in cross-examination on another issue, she said her son had gone driving in their taxi. That is an inconsistency.
50. The trial judge thus identified an inconsistency in the course of cross-examination. On the one hand the witness said that the family did not own a vehicle. On the other hand, she later said her son had gone driving in their taxi. Was that an accurate summary of the evidence? We refer to the transcript. Towards the end of cross-examination was this exchange:
Q: Do you have a vehicle?
A: At that time we did not have our vehicle yet. Our taxi just came in and like it was running but the thing [the crowbar] was already there in the garden long time because that is the spot where we normally make our garden year after year.
Q: All right so the tool has never been brought to your house, is that correct?
A: No.
51. A short time later, still in cross-examination, the subject of a vehicle was introduced by the witness's answer to a question about knowledge of the death:
Q: Did you come to know later that somebody died as a result of the fight?
A: Yes, that is when the rumour reached us.
Q: How did you come to know about it?
A: That morning after Ilai, my son drove out to go and run around for picking passengers and then some people told him that he was blamed for that incident.
Q: Ilai went around to pick up passengers?
A: Yes, that morning, on that morning, like after the incident happened, we went off to sleep and then the next morning he got up, went to drive out to work on passenger runs.
Q: In the taxi?
A: In the taxi and someone told him that this thing happened like that so he came back and told me about it.
52. We agree with the submission of the applicant's counsel that the statements made by the applicant's mother are not necessarily inconsistent. She appears to be distinguishing between a vehicle and a taxi. It might be that the family was running a taxi business and that was the taxi referred to as being driven by the applicant the morning after the incident. Perhaps after the incident they acquired a vehicle, as distinct from a taxi. The evidence was rather vague and the prosecutor did not interrogate in detail on the issue whether the family owned a vehicle and/or a taxi at the time of the incident. It was not a subject that was given much attention in his closing address. We consider that the trial judge misapprehended the evidence and wrongly concluded that there was an inconsistency in the defence case.
Conclusion re misapprehension of evidence
53. We uphold the submission that the trial judge misapprehended the defence case in the three ways referred to. These were errors of fact that had a significant bearing on the outcome of the trial as, soon after setting out the two inconsistencies and noting that it was perplexing that the defence witnesses have not said why they would leave their crowbar in the garden and not at their house, the trial judge remarked:
The accused's parents' evidence cannot be believed.
54. After reviewing the evidence, one of the conclusions the trial judge reached was:
The accused's parents are not truthful witnesses as there are too many inconsistencies in their evidence, they are very evasive and calculating in their answers, providing answers that will best suit their line of defence.
55. We find that the trial judge rejected the defence case without good reason.
(b) Drawing adverse inference against applicant for exercising the right to remain silent
56. Another reason the trial judge gave for rejecting the defence case (that the applicant was not at the crime scene when the deceased was attacked with the crowbar) was that the applicant had not said that that was his story during his police interview. The trial judge stated:
Another fact most obvious is that this is the first time the accused and his witnesses have told this story to the Court, more particularly the accused. If this was what had happened, the accused in all likelihood would have told the Police during the Record of Interview. He however remained silent throughout. The accused's Record of Interview with the Police was tendered into Court by consent and marked as an exhibit.
57. Mr Mamu submitted that this passage shows that the trial judge drew an adverse inference against the applicant for exercising his right to remain silent and that it was an error of law to do so.
58. In Papua New Guinea a person suspected of or charged with a criminal offence has a right to silence at all stages of the criminal process from arrest to trial. At the trial the right to silence is expressly conferred by Section 37(10) of the Constitution, which states:
No person shall be compelled in the trial of an offence to be a witness against himself.
59. In the period before trial including during a formal police interview the right to silence is best regarded as being conferred by the underlying law or what used to be known as "the Judges' Rules". The right is usually implemented by a police officer issuing a caution at the beginning of the interview, as it was in the present case, in terms such as this:
I am warning you that you do not have to say anything as anything you do say will be taken down in writing and may be given in court as evidence.
60. In the present case the applicant answered all questions he was asked about the death of Trent Wesley by saying "I wish to remain silent". We agree with Mr Mamu's contention that the trial judge drew an adverse inference arising from his silence. The judge was tacitly expressing the view that if the story being told by the applicant and his parents (that he was nowhere near the crime scene when the deceased was attacked) was true, he would have told the police that story when he was interviewed. The fact that he said nothing gives rise to the inference that what he is saying at his trial is not true. It is a recent invention. Was that a proper inference to draw? The Supreme Court (Sevua J, Mogish J, Lay J) indicated the answer in Fred Bukoya v The State (2007) SC887:
Until there is evidence to the contrary, the only inference that can be safely drawn from silence at the police station, is that the accused was exercising his right to silence in accordance with the warning given to him by the police officer conducting the interview. Why the accused exercised that right cannot be inferred from silence.
Because of the multiplicity of reasons which might operate on the mind of the accused, and the danger of a wrong inference being drawn from silence, a court should be very slow to malign the accused's version of events, solely because that version was not given to the police at the interview, or to draw any inference from silence at the police station.
61. We endorse the views expressed by this Court in Bukoya. It is clearly not a proper inference to draw from the exercise by an accused person of his right to silence that his sworn testimony at the trial should be treated with caution or suspicion or that its credibility is diminished. The trial judge erred in law by drawing such an inference.
(c) Failing to set out the elements of the offence and link the evidence to each element
62. We uphold the argument that in delivering the verdict the trial judge did not set out the elements of the offence and link the evidence to each element. As the applicant was indicted on a charge of wilful murder the State had the onus of proving beyond reasonable doubt the elements of the offence under Section 299(1) of the Criminal Code, which states:
... a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
63. The elements are that:
64. It is an integral part of the judge's decision-making process in a criminal trial to state clearly the elements of the offence and to assess the evidence and to give reasons for the court being satisfied beyond reasonable doubt (or not) of each of the elements (Devlyn David v The State (2005) SC881, Patrick Towingo v The State (2008) SC983, Onama Andrew v The State (2009) SC997). A failure to set out the elements accurately might of itself amount to an error of law and will often be the cause of errors.
65. Here, the trial judge did not set out the elements of wilful murder and with respect compounded the error by making no express or clear finding of the first and fundamental element that the applicant killed the deceased. Having posed the question "Who 'speared' the deceased Trent Wesley?" the trial judge provided no immediate answer, instead obliquely resolving the question by stating "The accused parents' evidence cannot be believed." It was only at the end of the judgment under conclusion No 6 that the trial judge found "that the accused swung the crowbar at [the State witness] which missed him and hit the deceased"; but still there was no express finding that the applicant killed the deceased. The trial judge, with respect, drifted between a consideration of the two distinct issues of whether the applicant killed the deceased and whether the applicant had an intention to kill, without clearly demarcating the determination of those elements.
66. We find error also in determination of the intention element. The trial judge found that the applicant did not intend to kill the deceased but did not address the question of whether the applicant intended to kill some other person, in particular the State witness. This was significant as it is not an essential part of the intention element that the State prove that the accused intended to kill the deceased. It is sufficient that there be an intention to cause the death of "some other person". A similar error was made in respect of the alternative verdict of murder. The trial judge found that the applicant did not intend to cause grievous bodily harm to the deceased but did not address the question of whether the applicant intended to do grievous bodily harm to some other person, in particular the State witness, and proceeded to enter a conviction for the lesser offence of manslaughter. In our view, having accepted the evidence of the State witness that it was the applicant who threw the crowbar into the back of the vehicle in the course of attacking the State witness, and rejecting the defence case that the applicant was not present, it was clearly available on the evidence to conclude that there was an intention if not to kill then at least to cause grievous bodily harm to the State witness. A conviction if not for wilful murder then for murder under Section 300(1)(a) of the Criminal Code was warranted. An error was made it would appear in entering a conviction for manslaughter.
Conclusion re ground 2
67. A trial judge must ensure that the rights of an accused person to the full protection of the law under Section 37(1) of the Constitution and in particular to be presumed innocent until proven guilty according to law under Section 37(4)(a) of the Constitution are enforced from the beginning to the conclusion of a trial. To those ends, sufficient weight must be given to the defence evidence, the right of the accused to remain silent must be protected and the elements of the offence being tried must be accurately set out and applied. We uphold the second ground of review as we consider that those rights were not fully enforced at this trial. In particular we find that the learned trial judge erred in fact by misapprehending three significant aspects of the evidence of the defence witnesses, erred in law by drawing an adverse inference against the accused for exercising his right to remain silent and erred in law by not setting out the elements of the offence being tried. They were significant errors of fact and law.
CONCLUSION
68. We have upheld both grounds of review, finding a number of errors of fact and law in the applicant's conviction, the combined effect of which was that the applicant was not given the full protection of the law under Section 37(1) of the Constitution. This gives rise to the question of what the consequences should be. As this is a review, not an appeal, the provisions of Division III.3 (additional provisions relating to appeals in criminal cases) of the Supreme Court Act Chapter No 37 do not automatically apply. However, in order to bring consistency into how criminal appeals and reviews are dealt with, we will adopt the provisions of Section 23 (determination of appeals in ordinary cases) in so far as they apply to appeals against conviction. Sections 23(1), (2) and (3) 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.
(3) If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.
69. We modify the wording of those provisions for present purposes by saying that their combined effect is that the Supreme Court should grant this application for review 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 application). If it thinks that none of Sections 23(1)(a), (b) or (c) applies it must dismiss the application.
70. As to Section 23(1)(a) we think that under all the circumstances of the case the verdict of guilty of manslaughter should be set aside on the ground that it is unsafe and unsatisfactory. It has been established that the trial judge made a number of significant errors of fact and law and we are 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).
71. As to Section 23(1)(b) there were a number of wrong decisions on questions of law.
72. As to Section 23(1)(c) we have found no material irregularity in the course of the trial.
73. We conclude that Sections 23(1)(a) and (b) apply and furthermore that there has been a substantial miscarriage of justice. This means that Section 23(3) operates. That is, the Court "shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered". The words "subject to this Act" mean that amongst other provisions Section 28 (new trial) must be considered. It states:
(1) If on an appeal against conviction, the Supreme Court thinks that—
(a) a miscarriage of justice has occurred; and
(b) having regard to all the circumstances, 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,
the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.
(2) Where a new trial is ordered, the Supreme Court may make such order as it thinks proper for the safe custody of the appellant or for admitting him to bail.
74. The combined effect of Sections 23(3) and 28(1) is that this Court, having decided to grant the application for review, should quash the conviction and then exercise a discretion, by deciding whether to:
75. Guidelines as to how this discretion should be exercised are provided by the Supreme Court's decisions in Charles Ombusu v The State [1997] PNGLR 699 and Fred Bukoya v The State (2007) SC887, which adopted the considerations set out by Bredmeyer J in Oscar Tugein v Michael Gotaha [1984] PNGLR 137. The Court should take into account:
(a) the public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders by the trial judge in the conduct of the trial;
(b) the expense and inconvenience to witnesses who would be involved in a new trial when weighed against the strength of the evidence;
(c) the seriousness and prevalence of the particular offence;
(d) the consideration that the criminal trial is an ordeal which the accused ought not to be condemned to go through for a second time through no fault of his own unless the interests of justice require that he should do so;
(e) the length of time elapsing between the offence and the new trial if ordered; and
(f) the strength and availability of the evidence.
76. Applying those considerations here, we note that:
(a) This was a serious offence involving loss of life and there is a strong public interest in bringing to justice the person who killed the deceased.
(b) The expense and inconvenience to witnesses of conducting a retrial in Alotau are not major considerations in this case as the witnesses live locally.
(c) The incident that led to the death appears to have been fuelled by alcohol and it is the type of incident that is unduly prevalent.
(d) A retrial would be an ordeal for the applicant, given that he has already been through one trial and served more than four years in custody, however we consider that his individual interests are outweighed by the public interest and the interest of the family of the deceased in seeing that justice is done.
(e) The incident occurred more than five years ago, however that is not an inordinate length of time that undermines the utility of a new trial.
(f) It is conceivable that a retrial, given the strength and availability of the evidence, would result in conviction.
77. In view of those considerations and having regard to all the circumstances we have decided that the miscarriage of justice that occurred is best remedied by ordering a new trial, rather than entering a verdict of not guilty, on terms that the trial be commenced within four months. We will order that the applicant remain in custody but that he may apply for bail pending the new trial.
ORDER
(1) The application for review is granted.
(2) The conviction of the applicant is quashed.
(3) There shall be a new trial, which shall be commenced within four months after the date of this order, failing which the applicant is entitled to be discharged.
(4) The applicant shall remain in custody but is at liberty to make an application to the National Court for bail pending a new trial.
_______________________________
Paul Paraka Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent
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