Lati v State [2015] PGSC 3; SC1413 (27 February 2015)

SC1413

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 18 OF 2009

AMBROSE LATI
Appellant

V

THE STATE
Respondent

Waigani: Sakora J, Davani J,
Mogish J, Cannings J, Manuhu J

2014: 28 November,
2015: 27 February

CRIMINAL LAW – appeal against conviction for wilful murder – Supreme Court Act, Section 23(1) – whether reasonable doubt about safeness or satisfactoriness of verdict – alleged inconsistencies in evidence – whether accused can be convicted of a shooting death without evidence he was in possession of a firearm – whether conviction for wilful murder can be based entirely on circumstantial evidence.

CRIMINAL LAW – sentencing for wilful murder – death sentence – Supreme Court Act, Section 23(4) – need for appellant to prove identifiable error that vitiates sentence or that sentence manifestly excessive – when is it appropriate to impose death sentence on person convicted of wilful murder?

The appellant was convicted after trial of one count of wilful murder and sentenced to death. The trial Judge found that in the early morning the appellant shot and killed his adopted son, intending to kill him. The trial Judge relied on the evidence of a key State witness who testified that he was standing next to the deceased when he was shot and that though he did not actually see the appellant shoot the deceased, the appellant came out of the darkness from the spot from which the shot was fired. The trial Judge accepted the evidence of four other State witnesses who said that they saw the appellant at or in the vicinity of the crime scene soon after the deceased was shot, behaving suspiciously and inconsistently with the normal reaction of a man who just found out that his son had been killed. The trial Judge rejected the evidence of the appellant that he was with his wife asleep in his shop across the road from the crime scene when the deceased was shot, as the appellant was an unconvincing witness and his evidence, the only evidence for the defence, was uncorroborated.

On sentence the trial Judge emphasised that wilful murder is not just a breach of the Criminal Code but a serious breach of Section 35 (right to life) of the Constitution, that the Court must start with the maximum penalty of death and then ascertain whether the peculiar circumstances of the case warrant a lesser penalty, that the Court should not be constrained by simply ascertaining whether the case falls within the established categories of cases warranting the death penalty and that this was a case of wilful killing of a child by a parent carried out in a premeditated and cold blooded manner in order to acquire the child's property. Therefore the death penalty was warranted.

The appellant appealed against conviction on three grounds: (a) failure to identify and resolve inconsistencies in the evidence of State witnesses; (b) absence of evidence that the appellant had possession of a firearm; (c) improper application of the principles concerning entering conviction based on circumstantial evidence.

He appealed against sentence on three grounds: (a) failure to follow Supreme Court sentencing guidelines on categories of cases in which the death penalty should be imposed; (b) finding, without evidence, that the killing was premeditated and planned; (c) regarding the death penalty as mandatory and failing to appreciate the discretion to impose a lesser sentence.

Held:

(1) To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115 applied).

(2) The three grounds of appeal against conviction were arguments that the conviction was unsafe and unsatisfactory. All were dismissed as: (a) there were no material inconsistencies in the evidence of the State witnesses; (b) there was some evidence from one witness that the appellant held a firearm but even if that evidence was rejected, a conviction was still available, based on circumstantial evidence; (c) the trial Judge applied the principles regarding circumstantial evidence and properly concluded that there was only one reasonable inference to draw from the accepted facts: that the appellant shot and killed the deceased, intending to kill him. There was no miscarriage of justice, so the appeal against conviction was dismissed.

(3) To succeed on an appeal against sentence an appellant must establish that the trial Judge made some identifiable error in the course of exercising the discretion as to sentence or that the sentence is manifestly excessive (Norris v The State [1979] PNGLR 605 applied).

(4) The three grounds of appeal against sentence were arguments that the trial Judge made identifiable errors. Ground (a) was dismissed as the trial Judge took into account Supreme Court sentencing guidelines for wilful murder. Ground (b) was upheld as there was insufficient evidence that the killing was premeditated and planned. Ground (c) was dismissed as the trial Judge did not regard the death penalty as mandatory and had a full appreciation of the sentencing discretion available.

(5) One ground of appeal against sentence (which involved a significant error of fact) having been upheld and taking into account that the death penalty should be reserved for the worst cases of wilful murder, the Court, exercising the discretion available to it under Section 27(4) of the Supreme Court Act and being of opinion that a less severe sentence is warranted in law and should have been passed, quashed the death sentence and passed in substitution for it the sentence of 30 years imprisonment.

(6) Thus the appeal against conviction was dismissed and the appeal against sentence was upheld.

Cases cited

The following cases are cited in the judgment:

David Kandakason v The State (1998) SC558
Devlyn David v The State (2006) SC881
John Beng v The State [1977] PNGLR 115
Manu Kovi v The State (2005) SC789
Norris v The State [1979] PNGLR 605
Paulus Pawa v The State [1982] PNGLR 498
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Ambrose Lati (2009) N3740
The State v Ambrose Lati CR No 513 of 2005, 20.03.09 unreported
The State v Hungi Koeskapi (2004) N2654
The State v Tom Morris [1981] PNGLR 493
Ure Hane v The State [1984] PNGLR 105

APPEAL

This was an appeal against conviction and sentence for wilful murder.

Counsel

D Koeget, for the appellant
P Kaluwin, T Ai & H Roalakona, for the respondent

27th February, 2015

1. BY THE COURT: Ambrose Lati was convicted by the National Court of one count of wilful murder and sentenced to death. He appeals against conviction and sentence.

2. The appellant was convicted of the wilful murder of his adopted son Jumbo Ambrose. The trial Judge, Yalo AJ, found that the appellant, then aged 47, shot the deceased, aged 22, at close range in the backyard of the deceased's house in Beat Street, Wabag at 4.30 am on Thursday 25 March 2004, killing him instantly.

TRIAL

3. The trial Judge found that the deceased and a number of other local residents came out of their houses in the middle of the night as another resident, Mrs Kepan, raised the alarm upon discovering that criminals were attempting to steal her family's motor vehicle. His Honour found that the appellant also came out of his house, which was across the road from the deceased's house, and went to the deceased's yard where he fired three shots from a Police-issued pump-action shotgun in the direction of the deceased. The first two missed and the third struck the deceased in the head. His Honour found that the appellant fired the third shot deliberately into the head and that he intended to kill the deceased, the motive being long-running ill-will between him and the deceased and that the deceased was living on land that the appellant wanted.

EVIDENCE OF STATE WITNESSES

4. In reaching those conclusions the trial Judge accepted the evidence of all seven State witnesses.

1 Kennedy Kepan testified that he was awoken by his parents when criminals attempted to steal their vehicle. He went out to Beat St and chased the criminals who ran up the street in the direction of the Police Station. He stood with State witness Bryan Gugu Humeu at the mini-market near the Seventh-Day Adventist Church on Beat St for 15 to 20 minutes. Then he heard the deceased shout from his backyard "The thief is here!" Then he heard three shots ring out from the deceased's backyard.

He heard State witness Buka Tipi shout from the footbridge that goes across Kop Creek to the main market that the shots came from the deceased's residence so someone should check on him. Then he saw the appellant walking along the fence of engineer Kenneth Korokali's house. The appellant was sweating and his eyes were red. He was wearing no shirt but carrying a shirt in his hand. The appellant went into his trade store, opposite the deceased's house, and emerged with a bushknife and a torch and walked into the deceased's yard.

He and Bryan then asked State witness Londari Napili to join them and they followed the appellant into the deceased's yard. The appellant was standing near a body. He (the witness) did not know at that stage that it was the deceased's body. The appellant was walking around as if he were searching for something on the ground and told those present that raskols had shot 'a person' so they should not go near the body. However one of the boys present pushed the appellant aside and walked over to the body and identified the deceased.

2 Buka Tipi testified that he was part of the crowd that chased the thieves up Beat St. When he reached the SDA Church and mini-market he and two other men walked down to the footbridge across Kop Creek. He heard the deceased shout from his backyard "The thief is here!" Then he heard three shots ring out from the deceased's backyard. He called out to the boys on Beat St to check on the deceased.

He looked over at the house of Nanes Ene, which is close to the deceased's house. He saw Nanes and the appellant there. They were whispering to each other. He could not hear what they were saying. Nanes, a reserve police officer, was holding a pump action shotgun. He called out to him and the appellant walked away. Nanes called back and pointed to a torch that was floating in the creek with its light on, so he (the witness) and his friends waited in the area near the footbridge until dawn. He grew up in the area and knows it well and blocked off all possible escape routes for the deceased's killer.

He gave evidence of seeing the appellant fight with the deceased on many occasions, including chasing him with a bushknife and destroying his properties. They used to fight over the deceased's grandmother's property. The appellant used to threaten that he would kill the deceased.

The witness pointed out that he was also charged with the murder of the deceased but was acquitted by the National Court in 2005.

3 Londari Napili testified that he was part of the group that chased the thieves. He ran to the mini-market near the SDA Church and heard the deceased shout from his backyard "The raskol is here!" Then he heard three shots, fired one after the other. There was complete silence after the third shot.

He heard Buka Tipi calling out from the footbridge for someone to check on the deceased so he walked towards the deceased's house and on the way met Bryan Humeu and Kennedy Kepan. They told him the appellant had come out of the bush and walked past them without saying anything and gone into his house and came out with a torch and bushknife.

He followed the appellant into the deceased's yard and met him face to face near the deceased's toilet. The appellant was shaky and had red eyes and looked suspicious and did not care about the deceased's body. Other people came down from the street but the appellant stopped them going near the body. The appellant was flashing his torch on the ground, looking for something.

He gave evidence of seeing the appellant a few weeks earlier chase the deceased with two bushknives in his hands. He (the witness) and his brother intervened and the appellant hit them. He heard the appellant say to the deceased "You are a bastard child. I will kill you and throw you in Kop Creek".

4 Peter Paul testified that he was part of the group that chased the thieves on Beat St. He met the deceased at the deceased's gate and went with him to check for the thieves down at the creek behind his backyard. The deceased had a torch and flashed it to the right and to the left, seeing no one. They took a few steps down the slope. He flashed the torch down the slope and they saw a man squatting, five metres down the slope. The deceased shouted "The raskol is here!" A deafening shot rang out, then another, immediately followed by a third. He saw the deceased fall. He knew he was dead.

He saw a man walk up quickly from where the shots were fired and rush to the deceased's body and grab the torch, which flashed in the man's face. He saw that it was the appellant. He had a gun in his hand and he walked towards Nanes Ene's house.

He (the witness) then ran up to the deceased's gate where he met Naimen Kepan and told him that the deceased was dead. Other people from the neighbourhood came and he waited with them until dawn.

5 Bryan Gugu Humeu testified that he was part of the group that chased the thieves on Beat St. He was with Kennedy Kepan near the SDA Church when he heard the deceased shout that he had found the thief hiding in his backyard. Then he heard three shots coming from the deceased's backyard. There was complete silence.

He heard Buka Tipi calling out from Kop Creek for someone to check on the deceased. He and Kennedy were afraid and did not move. Ten to fifteen minutes later they saw a figure emerge from the bush near Nanes Ene's place. That person looked up and down the street before stepping on to the road where he came face to face with the witness and Kennedy Kepan. It was the appellant. He was sweating, his eyes were red, he looked suspicious and appeared to be in a rush. He was carrying a shirt in his hand. He walked past them without a word. He went into his area and emerged a moment later with a torch and bushknife. He walked into the deceased's area.

Shortly afterwards Londari Napili arrived and they told him about the appellant looking suspicious. They followed Londari into the deceased's area. The appellant told them not to go near the deceased's body. They saw the appellant flashing his torch on the ground, searching for something.

6 Joe Napili Nepawan is a relative of the deceased. His evidence concerned the nature of the relationship between the appellant and the deceased. There were many occasions on which the appellant chased the deceased on Beat St with a bushknife in his hands. On one of those occasions, in June 2003, the appellant threatened to kill the deceased and throw him in the creek.

7 Detective Senior Constable Mokoso Maliso was the Police investigator in the murder case. He organised the deceased's backyard toilet to be dug up and drained. Three empty shotgun shells were found at the bottom of the toilet.

EVIDENCE FOR THE DEFENCE

The appellant was the only witness for the defence. He testified that he was asleep with his wife and the deceased's young daughter in his shop, across the road in Beat St from the deceased's house. At 4.00 am he was woken by the noise of people on Beat St. He went outside and told the people not to disturb the sleep of some prominent people on Beat St, so they moved up to the mini-market area. He went back to sleep. Twenty minutes later he heard a gunshot. Then he heard two more. He walked on to the street and met Peter Paul who was carrying a torch. Peter said that he was with the deceased when he was shot. He went over to the deceased's yard and found the deceased's body and cordoned off the crime scene. He searched for the killer's tracks but could find none.

He denied being seen by Kennedy Kepan and Bryan Humeu. He denied being near Nanes Ene's house. He denied looking suspicious. He denied having a torch grabbed from him by Londari Napili. He denied Peter Paul's evidence that he shot the deceased and got the torch from the deceased after he had shot him. He denied fighting with the deceased on Beat St and threatening to kill him. He denied throwing empty shotgun shells into the deceased's toilet. The appellant's view was that the person who shot the deceased was Buka Tipi.

TRIAL JUDGE'S REASONING

Verdict

5. The trial Judge delivered a 40-page written judgment on verdict (The State v Ambrose Lati CR No 513 of 2005, 20.03.09 unreported). His Honour accepted Peter Paul's evidence that he was with the deceased when he was shot dead and that he saw the appellant walk up from the spot from which the shots were fired and grab a torch from the deceased. His Honour concluded that the appellant threw the torch into Kop Creek.

6. His Honour accepted Buka Tipi's evidence that he saw the appellant and Nanes Ene outside Nanes' house whispering to each other. That evidence was regarded as reliable, credible and unbiased.

7. His Honour accepted the evidence of Kennedy Kepan and Bryan Humeu that they saw the appellant emerge from the bush looking suspicious. He accepted Londari Napili's evidence about following the appellant into the deceased's yard and the appellant looking shaky and scared and Londari grabbing the appellant's torch from him. His Honour regarded the evidence of Joe Napili Nepawan and Snr Const Maliso as reliable.

8. His Honour found the appellant's evidence to be unconvincing, containing multiple inconsistencies and untruthful. His Honour noted a number of inconsistencies between the appellant's oral testimony and the statement he made to the Police. None of the appellant's evidence was corroborated. His claim that Peter Paul had been threatened by other State witnesses was unsubstantiated. His opinion that Buka Tipi shot the deceased was dismissed as a false accusation.

9. His Honour applied the principles on circumstantial evidence. He reasoned that the only rational conclusion to draw from the facts and evidence before him was that the appellant shot the deceased at close range, killing him. His Honour concluded, because of the short intervals between the shots and the nature of the three shells found in the toilet, that the appellant used a pump action shotgun to shoot the deceased.

10. His Honour concluded that when the appellant saw the deceased fall, he came out of his position and removed the deceased's torch. In his haste to get away he did not see Peter Paul. He threw the torch into the creek, as a decoy. He walked through the bushy area into Nanes Ene's backyard where he discussed something with him. He stepped on to the road, walked into his house and got his torch and a bushknife and returned to the crime scene. He was overwhelmed when he saw the victim, hesitated and stood shocked and shaky in front of the deceased's toilet. That is when Londari Napili found him. It dawned on the appellant that the boys might come and discover the empty shotgun shells so he searched for them.

11. Having found that the appellant killed the deceased (and no excusatory defences such as self-defence or accident having been raised) the trial Judge turned to the question of whether the appellant intended to kill him. His Honour noted the evidence of a number of State witnesses that the appellant had on a number of occasions fought with the deceased over the deceased's properties and threatened to kill him.

12. The distance from which the appellant hid and shot the deceased and the number of shots he fired were taken into account as strong evidence demonstrating the intention to kill. His Honour held that the appellant's actions could not be regarded as an accident or a mistake. At the time he was shot the deceased had a torch in his hand and was searching for the thieves in his backyard. The deceased shouted that he had found the thief. If the appellant did not see that it was his son who he was aiming at it would have been obvious that it was his son's voice.
This showed that the appellant planned and intended to kill the deceased. The appellant was therefore found guilty of wilful murder, as charged.

Sentence

13. The trial Judge delivered a 35-page written judgment on sentence (The State v Ambrose Lati (2009) N3740). His Honour emphasised that wilful murder is not just a breach of the Criminal Code but also a serious breach of Section 35 (right to life) of the Constitution. He noted that the maximum penalty for the offence of wilful murder is death. He acknowledged that death is not a mandatory penalty and that he had a discretion to exercise. He discussed three cases in which the Supreme Court gave guidelines on when it would be appropriate to impose the maximum penalty for wilful murder: Ure Hane v The State [1984] PNGLR 105, Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.

14. In Hane the leading judgment was given by Bredmeyer J who suggested that there were eight categories of wilful murder that should be regarded as the worst type: wilful murder committed in the course of committing another crime such as robbery or rape; wilful murder of a police officer or prison warder; wilful murder committed in the course of resisting arrest or in escaping from lawful custody; wilful murder of a person in custody; a payback killing of a completely innocent person; any second murder; any murder where the offender has a long record of violence; wilful murder of a VIP.

15. In Kovi it was suggested that wilful murder convictions could be put in four categories of increasing seriousness, with appropriate tariffs being: category 1: 15 to 20 years; category 2: 20 to 30 years; category 3: life imprisonment; category 4 (worst cases): death. The Court indicated that the worst cases would be where there were special aggravating factors, with no extenuating circumstances or where the mitigating factors were rendered completely insignificant by the gravity of the offence.

16. In Ume the Court stated that the death penalty might be considered appropriate in the following types of cases: (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.

17. His Honour accepted that those three Supreme Court cases stood for the proposition that the death penalty should be reserved for the worst type of wilful murder cases. However, he suggested, following the approach of Lenalia J in The State v Hungi Koeskapi (2004) N2654, that the starting point when sentencing for wilful murder is the death penalty. The Court should then consider the extenuating circumstances of the case to determine whether a sentence other than death is warranted.

18. Using the death penalty as the starting point, his Honour found that the only extenuating or mitigating factor was that the appellant had no prior convictions. He found many aggravating factors: there was no provocation offered by the deceased; the appellant was motivated by greed (he wanted the deceased's land) and a strong and selfish desire to kill; the killing was premeditated and planned [para 42]; it was a brutal killing in cold blood of an innocent person; the deceased was his adopted son; the appellant at no time stopped and reconsidered his actions.

19. It was acknowledged that the circumstances of the case did not fall neatly into any of the categories set out in Ume as warranting the death penalty. However, his Honour took the view that that did not make the death penalty unwarranted. A trial Judge should not shy away from imposing the maximum penalty where the particular circumstances of the case warrant such a penalty. His Honour considered that the categories of worst cases recognised by the Supreme Court in the three cases he referred to (Hane, Kovi and Ume) were not exhaustive. This case could be regarded as a new category of worst cases: where a parent kills his child in a 'senseless, pitiless, vicious and brutal cold-blooded manner in order to 'inherit' the child's possessions or wealth. His Honour concluded:

I am satisfied that the degree of moral and criminal culpability and the degree of cruelty and senselessness and the complete absence of pity exhibited by the Prisoner is so grave and reprehensible that he is undeserving of a chance to live his own life. It is only just and fair that the prisoner should pay for the crime with his own life.

GROUNDS OF APPEAL AGAINST CONVICTION

20. Three grounds of appeal are raised. It is argued that the trial Judge erred in fact and law by:

(a) failing to identify and resolve inconsistencies in the evidence of State witnesses;

(b) finding that the appellant shot and killed the deceased despite there being no evidence that he had possession of a firearm;

(c) improperly applying the principles on entering a conviction based on circumstantial evidence.

21. To succeed on an appeal against conviction an appellant must establish that:

• the verdict is unsafe or unsatisfactory, or
• the conviction entailed a wrong decision on a question of law, or
• there was a material irregularity in the trial.
  

22. In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from 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.

23. The three grounds of appeal against conviction are arguments that the conviction is unsafe and unsatisfactory. They are made under Section 23(1)(a).

GROUND (a): FAILURE TO IDENTIFY AND RESOLVE INCONSISTENCIES IN EVIDENCE OF STATE WITNESSES

24. Mr Koeget for the appellant submitted that the evidence of Kennedy Kepan and Gugu Bryan Humeu contradicted the evidence of Peter Paul. On the one hand, Kepan and Humeu stated that after the three gunshots were fired the appellant walked past them. He was not wearing a shirt and was sweating. He then walked into his house and got a bushknife and a torch. On the other hand Peter Paul stated that he was with the deceased when the shots were fired and saw him fall when he was hit by the third shot.

25. We do not see any inconsistency in the evidence of these witnesses. The evidence of Peter Paul was critical because he said that he was with the deceased when he was shot and he saw the appellant come from the spot, only five metres down the slope, from where the shots were fired. The evidence of Kepan and Humeu concerned events that happened, according to their evidence, 10 to 15 minutes after the shots were fired. They saw the appellant emerge from the bush near Nanes Ene's house. He was behaving suspiciously. The evidence of Kepan and Humeu does not contradict the evidence of Peter Paul. We dismiss ground (a).

GROUND (b): ABSENCE OF EVIDENCE THAT APPELLANT WAS IN POSSESSION OF FIREARM

26. Mr Koeget submitted that the trial Judge erred by finding as a fact that the appellant had fired the shots at the deceased as there was a paucity of evidence that he had possession of a firearm before or after the deceased was shot. Mr Koeget submitted that the only evidence that the appellant had a firearm came from Peter Paul, but that evidence was weak and contradictory. In cross-examination Paul said that he saw the appellant with a firearm when the appellant got the torch from the deceased's body; in re-examination he said the appellant was not holding a firearm when he picked up the torch.

27. Mr Koeget submitted that according to the evidence of Buka Tipi – who said that he saw the appellant whispering to Nanes Ene shortly after the shots were fired – it was Nanes Ene who was holding a firearm, a pump-action shotgun. Buka Tipi did not see the appellant holding any firearm.

28. Those are reasonable submissions. We agree that the evidence of Peter Paul on the issue of whether the appellant was holding a firearm when he grabbed the torch from the deceased's body was not satisfactory. The witness contradicted himself: in cross-examination he saw the appellant holding a firearm, in re-examination he did not see him holding a firearm. As to the evidence of Buka Tipi, it is correct that he was the only witness to give clear and straightforward evidence of any person being in possession of a firearm, and that person was not the appellant, it was Nanes Ene.

29. In our view, however, it was not necessary as a matter of law for there to be direct evidence that the appellant held a firearm either before or after the shooting. It was always open to the State to prove its case by circumstantial evidence, and that is how the appellant was eventually convicted. The fact that there was no direct evidence of the appellant holding a firearm is therefore by itself of no consequence.

30. We have considered whether the trial Judge erred by ignoring the contradiction in Peter Paul's evidence. However, his Honour in effect dealt with it (at page 35 of his written judgment) by pointing out that on the one hand, Paul in his Police statement said that he saw, when the deceased shone his torch and shouted that he had found the thief, someone squatting, holding 'what looked like a gun', while on the other hand in his oral testimony (in cross-examination) he said that he saw the appellant with a gun, seconds after the deceased was shot. His Honour referred to David Kandakason v The State (1998) SC558, which stands for the proposition that the existence of a prior inconsistent statement does not by itself make a witness's oral evidence unreliable. His Honour clearly regarded Peter Paul as a truthful witness. Despite the unsatisfactory evidence about whether the appellant was holding a gun, his Honour accepted the critical aspects of Paul's evidence:

• that he was with the deceased when he was shot, that the shots were fired from a distance of five metres,
• that immediately after the third shot, a person emerged from the spot from where the shots were fired and grabbed the deceased's torch,
• that in the process that person shone the light on to his own face, and
• that person was the appellant.
  

31. The trial Judge adequately dealt with the absence of clear and uncontradicted direct evidence that the appellant was in possession of a firearm. We dismiss ground (b).

GROUND (c): IMPROPER APPLICATION OF PRINCIPLES ON CIRCUMSTANTIAL EVIDENCE

32. Mr Koeget submitted that the trial Judge misapplied the principles on entering a conviction based on circumstantial evidence. If his Honour had applied the principles correctly, it would have been concluded that the appellant was not guilty. The guilt of the appellant was not the only inference to be drawn from the facts decided.

33. Mr Koeget submitted that there was another inference to be drawn from the decided facts: that the person who shot the deceased was the only person seen by a witness to be holding a firearm: Nanes Ene, who was an obvious suspect, who did not give evidence at the trial.

34. The argument is not that the trial Judge did not correctly set out the principles on entering a conviction based on circumstantial evidence. The argument is that his Honour did not apply the principles correctly. This is an important distinction to make, as it is clear that his Honour did set out the relevant principles carefully and properly. At para 58 of his judgment on verdict his Honour stated:

I am persuaded by ample authorities that where evidence in a criminal trial is wholly circumstantial I must acquit unless the facts are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

35. His Honour correctly referred to the leading Supreme Court cases on circumstantial evidence including The State v Tom Morris [1981] PNGLR 493 and Paulus Pawa v The State [1982] PNGLR 498. Those cases continue to be cited with approval when the Supreme Court deals with appeals against convictions based on circumstantial evidence. In Devlyn David v The State (2006) SC881 the principles were restated as follows:

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

36. So, how did the trial Judge apply those principles? Did he err in applying them? He firstly made findings of fact, essentially accepting the evidence of all State witnesses and rejecting absolutely the appellant's evidence as it contained multiple inconsistencies and was unconvincing and untruthful. Key findings of fact made were:

• The deceased was in his backyard with Peter Paul, looking for the car thieves, and shone a torch down the hill towards Kop Creek and having shouted that he had found the thief, was shot at close range by a person who fired three shots from a pump-action firearm at him from a distance of about five metres; the first two missed and the third shot struck him in the head, killing him instantly.
  
• The appellant walked out from the spot from where the shots were fired and grabbed a torch from the deceased, not realising that he had been seen by Peter Paul.
  
• The appellant threw the deceased's torch into the creek.
  
• The appellant walked though a bushy area towards Nanes Ene's house. A few minutes after the shots were fired, he had a whispering conversation with Nanes Ene in Nanes' backyard, during the course of which Nanes was holding a pump-action firearm.
  
• The appellant then walked on to Beat St, behaving suspiciously. He walked straight past Kennedy Kepan and Bryan Humeu without acknowledging them.
  
• The appellant walked into his shop and soon emerged with a bushknife and torch and walked across the road into the deceased's area and into his backyard.
  
• In the deceased's backyard he continued to behave strangely and suspiciously and in a manner unlike what would reasonably to be expected of the reaction of a man who had just discovered that his son had been shot dead.
  

37. His Honour then applied the principles on circumstantial evidence to those findings of fact, at paras 82, 83 and 90 of the written judgment, in this way:

Considering the facts and evidence before me there is both a direct evidence and or a very strong circumstantial evidence that leads me to one reasonable conclusion. That is Ambrose [the appellant] is clearly placed at the crime scene. [82] ...

Considering the facts and evidence before me and applying the principle of law on circumstantial evidence the only rational conclusion I must draw is that Ambrose shot Jumbo [the deceased] at close range with a pump-action shotgun. [83] ...

If I am wrong in my conclusion that there is strong direct evidence to find Ambrose guilty as charged then there is a very strong circumstantial evidence that persuades me to say that the only conclusion that I am made to draw from the evidence before me is that Ambrose shot dead Jumbo with the intention to kill him.[90]

38. It is clear that his Honour found, applying the principles in Pawa's case, that the proven facts were inconsistent with any reasonable hypothesis other than that the appellant killed the deceased by shooting him at close range, intending to kill him. His Honour found that that hypothesis was the only rational inference that could be drawn. Though his Honour did not expressly refer to the restated test in David's case, he clearly expressed the opinion that the proven facts led reasonably to only one conclusion: that the accused killed the deceased and intended to kill him.

39. We find no error in the manner in which his Honour applied those principles. As to Mr Koeget's submission that his Honour overlooked an obvious alternative hypothesis, that it was Nanes Ene who shot the deceased, not the appellant, this is a useful point. We think that his Honour should have expressly referred to this as an alternative hypothesis. It is correct, as Mr Koeget emphasised throughout his submissions, that Ene was the only person seen by any of the witnesses with a firearm in his possession.

40. However, we do not regard it as an error of law for his Honour not to have expressly referred to this alternative hypothesis as he was clearly of the view that that hypothesis was not a reasonable one and that it ought to be excluded. We agree with that view.

41. There was such a substantial body of evidence against the appellant and no credible evidence to support the defence case, which was entirely uncorroborated, that it was not reasonably possible to draw any inference from the facts other than that it was the appellant who shot the deceased from close range, intending to kill him.

42. In our view his Honour did not err in applying the principles on circumstantial evidence and reaching those conclusions. As the appellant had raised no excusatory defences, his killing of the deceased was unlawful. Therefore all elements of the offence of wilful murder were proven beyond reasonable doubt and the guilty verdict was properly entered. We dismiss ground (c).

APPEAL AGAINST CONVICTION

43. We have dismissed all grounds of appeal. None of them show that the conviction was unsafe or unsatisfactory. We consider that there was no miscarriage of justice and dismiss the appeal against conviction.

GROUNDS OF APPEAL AGAINST SENTENCE

44. It is argued that the trial Judge erred in fact and law by:

(a) failing to follow Supreme Court sentencing guidelines on categories of cases in which the death penalty should be imposed;

(b) finding, without evidence, that the killing was premeditated and planned;

(c) regarding the death penalty as mandatory and failing to appreciate the discretion to impose a lesser sentence.

45. To succeed on an appeal against sentence an appellant must establish that the trial Judge made some identifiable error in the course of exercising the discretion as to sentence or that the sentence is manifestly excessive (Norris v The State [1979] PNGLR 605). The three grounds of appeal against sentence are arguments that the trial Judge made identifiable errors.

GROUND (a): FAILING TO FOLLOW SUPREME COURT SENTENCING GUIDELINES

46. Mr Koeget submitted that the trial Judge erred in law by not following Supreme Court sentencing guidelines in cases such as Hane, Kovi and Ume. If he had followed them, he would not have concluded that this case warranted the death penalty.

47. We find no merit in this argument. His Honour had close regard to those three cases and discussed them in detail. He acknowledged that the present case did not fall neatly into any of the worst case scenarios previously recognised. However, he decided that that did not prevent the Court treating this as a worst case. We agree with that approach. There is nothing in any of those cases to suggest that Supreme Court was providing anything more than guidelines or examples of the types of cases which might be considered by the sentencing Judge to attract the death penalty. No attempt was made to prescribe an exclusive list of worse case scenarios. In each of those cases the Supreme Court recognised that each case must be considered on its merits.

48. Here the trial Judge considered the case on its merits, found that there was only one extenuating factor and a host of aggravating factors, decided that this was a case that should be regarded as falling amongst the worst type of cases of wilful murder and therefore imposed the death penalty. We find no error in his Honour's method of reasoning. There was no disregard of Supreme Court scenting guidelines. We dismiss ground (a).

GROUND (b): FINDING WITHOUT EVIDENCE THAT THE KILLING WAS PREMEDITATED AND PLANNED

49. It is argued that the trial Judge erred by stating that this was a case of a premeditated and planned killing and taking that into account as an aggravating factor.

50. We uphold this argument. There was a dearth of evidence to support such a finding. His Honour accepted that the train of events that culminated in the deceased being shot was started by the thieves who attempted to steal a motor vehicle of one of the residents of Beat St. This commotion brought people out on the street. It brought the deceased out of his house. It brought five State witnesses out of their houses: Kennedy Kepan, Buka Tipi, Londari Napili, Peter Paul and Bryan Gugu Humeu. His Honour found that in the course of the local residents coming out of their houses and chasing the thieves, the appellant stationed himself five metres down the slope from the deceased's backyard towards Kop Creek and then waited until the deceased came and then shot him at close range.

51. The finding that this was a planned killing is incongruous with the fact that the series of events was started by the independent action of those persons who attempted to steal the motor vehicle. We use the word 'independent' advisedly as there was no evidence at all that the appellant had arranged with or paid those persons to attempt to steal the motor vehicle as a ruse to draw people, including the deceased, out of their houses, so that the appellant would be in a position to kill the deceased. We think that sort of evidence was necessary before this could be labelled as a planned killing.

52. The evidence points to this being a crime of opportunity rather than a planned or premeditated crime. The evidence suggests that the shooting of the deceased was a spontaneous action committed by a person who had a grievance against the deceased (of which there was ample evidence) and a motive (his desire to take over the deceased's property) for killing him.

53. There was insufficient evidence to warrant the conclusion that this was a planned or premeditated crime. We find that this was an identifiable error on the part of the learned trial Judge. It was a serious error, as it was taken into account as a significant aggravating factor. We uphold ground (b).

GROUND (c): REGARDING DEATH PENALTY AS MANDATORY

54. Mr Koeget submitted that the trial Judge regarded the death penalty as mandatory and did not appreciate the discretion he had available to him.

55. This is not correct. Nowhere in his carefully considered and researched judgment on sentence did the trial Judge indicate that he saw the death penalty as mandatory. He indicated throughout his judgment that he was well aware of the discretion of the sentencing Judge and his duty to consider the case on its merits and to take into account Supreme Court sentencing guidelines and the extenuating and aggravating factors. We dismiss ground (c).

APPEAL AGAINST SENTENCE

56. We have upheld one ground of appeal and found that the trial Judge made an identifiable error. It was a significant error and in our view it vitiates the sentence. This should have been treated as a wilful murder committed spontaneously as a crime of opportunity. It was not planned or premeditated. In our opinion that takes this case out of the categories of worst cases. This is not a case that warranted the death penalty. We would invoke Section 23(4) of the Supreme Court Act, which states:

On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

57. In our opinion a less severe sentence is warranted in law and should have been passed. We would quash the death sentence imposed by the National Court and pass in substitution the sentence of 30 years imprisonment.

ORDER

(1) The appeal against conviction is dismissed.

(2) The appeal against sentence is allowed.

(3) The sentence of death is quashed and substituted by the sentence of 30 years imprisonment.

(4) The warrant of commitment issued by the National Court shall be revoked and substituted by a fresh warrant of commitment reflecting the new sentence.

_________________________________________________________
Koeget Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyer for the Respondent