Kaiak v State [2016] PGSC 20; SC1505 (27 April 2016)

SC1505

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NOS. 52 & 53 OF 2011

MARTIN KAIAK & PAUL BUKA
Applicants

V

THE STATE
Respondent

Mt Hagen: Cannings J, Geita J, Pitpit J
2016: 27^th April

CRIMINAL LAW – application for review of conviction for murder – dying declarations, Evidence Act, Section 20 – exception to hearsay rule – whether evidence of State witnesses of alleged dying declaration of the deceased was admissible – whether properly admitted into evidence.

The applicants were convicted after a joint trial of one count of murder and sentenced to 20 years imprisonment. The trial Judge found on the basis of statements made by the deceased to State witnesses on the day of his death – that it was the applicants who assaulted him – that he had indeed been assaulted by the applicants, who intended to cause him grievous bodily harm and who killed him. His Honour also found that the applicants’ alibi evidence was weak, unreliable and false, and corroborated the State’s case. They sought review of their convictions on the ground that they had been convicted on hearsay evidence, which was improperly admitted, as the trial Judge did not apply Section 20 (dying declarations) of the Evidence Act, and that if that evidence had not been admitted, they would have been found not guilty, as there was no other evidence implicating them in the death of the deceased.

Held:

(1) To succeed on a review of a conviction, an applicant must, just as in the case of an appeal against conviction, 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.

(2) It is incumbent on a trial judge to ensure that hearsay evidence is not admitted into evidence, even where there is no objection to its admission. By doing so the Court is discharging its duty under Section 37 of the Constitution to afford the accused person the full protection of the law, including the right to a fair trial.

(3) Dying declarations are an exception to the rule against hearsay. However, before ruling that a dying declaration should be admitted into evidence it is necessary for the trial judge to rigorously address the preconditions set out in Section 20 of the Evidence Act.

(4) Here the verdict is unsafe and unsatisfactory as the trial judge allowed hearsay evidence to be admitted, without conducing due inquiry into whether the evidence was admissible under Section 20 of the Evidence Act and, without that evidence, the applicants could not lawfully have been convicted. Furthermore, for the same reasons, the convictions entailed a wrong decision on a question of law and there was a material irregularity in the trial. Consequentially there was a substantial miscarriage of justice.

(5) The convictions were quashed and verdicts of not guilty were entered.

Cases cited:

The following cases are cited in the judgment:

Brian John Lewis v The State [1980] PNGLR 219
Charles Ombusu v The State [1997] PNGLR 699
Fred Bukoya v The State (2007) SC887
Ilai Bate v The State (2012) SC1216
John Beng v The State [1977] PNGLR 115
Kutau v The State (2007) SC927
Oscar Tugein v Michael Gotaha [1984] PNGLR 137
Stephen Isaac Awoda v The State [1984] PNGLR 165
The State v Enny Bulen [1990] PNGLR 43

REVIEW

This was an application under Section 155(2) (b) of the Constitution for review of convictions for murder.

Counsel:

L Siminji, for the Applicants
J Kesan, for the Respondent

27^th April, 2016

1. BY THE COURT: Martin Kaiak and Paul Buka seek review by the Supreme Court of their convictions for the crime of murder. They were found guilty after a trial at Lae before Justice Gabi of the murder, on 7^th June 2008, of an elderly man, Kais Sokam, at Manum village, Huon District, Morobe Province. They were each sentenced to 20 years imprisonment.
   

LEAVE TO REVIEW

2. At the commencement of hearing this matter the Court discovered that leave to seek review of the convictions had not been granted under Section 155(2)(b) of the Constitution, which states:
   

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

3. It was necessary for the applicants to be granted leave to seek review, as they had not lodged their appeals within the time prescribed by the Supreme Court Act.
   

We granted leave, after hearing submissions from counsel (the State did not oppose leave) and applying the criteria set out by the Supreme Court in Mark Bob v The State (2005) SC808.

THE TRIAL

4. The trial Judge found, on the basis of the evidence of six State witnesses, that the deceased told those witnesses on the day of his death that he had been assaulted, the previous night, by three men. He told them that two of the men were “Martin and Paul” and he did not disclose the identity of the other man.
   

That was hearsay evidence but the defence counsel raised no objection to it being admitted into evidence. The prosecutor did not seek to rely on Section 20 (dying declarations) of the Evidence Act. And the trial judge did not intervene and ask counsel to address the requirements of Section 20. The issue of Section 20 was raised by the defence counsel in the course of making a no-case submission at the close of the State’s case but still no formal objection was made to the admission into evidence of what the deceased said to the State witnesses on the day of his death. The no-case submission was refused and the applicants gave alibi evidence in their defence.

5. His Honour proceeded to convict them, relying on the Sate witnesses’ evidence of what the deceased told them on the day of his death about “Martin and Paul” assaulting him. His Honour found that it was the applicants who assaulted the deceased the night before his death and killed him, and they had intended to cause him grievous bodily harm. His Honour also found that the applicants’ alibi evidence was weak, unreliable and false, and corroborated the State’s case. Thus were guilty of murder under Section 300(1)(a) of the Criminal Code.
   

APPROACH TO REVIEWS OF CONVICTIONS UNDER SECTION 155(2) (b) OF THE CONSTITUTION

6. We consider that in hearing an application for review of convictions the Supreme Court should apply the same principles it applies when hearing an appeal against convictions. That is, to succeed in an application, an applicant 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.
     
7. 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.

GROUND OF REVIEW

8. The applicants seek review of their convictions on the ground that they were convicted on hearsay evidence, which was improperly admitted, as the trial Judge did not apply Section 20 (dying declarations) of the Evidence Act. They argue that if that evidence had not been admitted they would have been found not guilty, as there was no other evidence implicating them in the death of the deceased.
   

DETERMINATION

9. It is incumbent on a trial judge to ensure that hearsay evidence is not admitted into evidence, even where there is no objection to its admission (Stephen Isaac Awoda v The State [1984] PNGLR 165, Fred Bukoya v The State (2007) SC887). By doing so the Court is discharging its duty under Section 37 of the Constitution to afford the accused person the full protection of the law, including the right to a fair trial.
   
10. Dying declarations are an exception to the rule against hearsay. However, before ruling that a dying declaration should be admitted into evidence it is necessary for the trial judge to rigorously address the preconditions set out in Section 20 of the Evidence Act, which states:
    

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—

(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and

(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

11. There are three preconditions:
    

(a) at the time he made the statement the deceased believed, or may be reasonably supposed to have believed, that his death was imminent;

(b) he would have been a competent witness; and

(c) he could, if he had not died, have given direct oral evidence (Kutau v The State (2007) SC927).

12. The preconditions are strict and the Court must insist on their rigorous application (The State v Enny Bulen [1990] PNGLR 43). In the present case, the preconditions were not mentioned at all, let alone rigorously applied. As a result, most of the State witnesses’ evidence remained hearsay.
    

We uphold the submission of Mr Siminji for the applicants that without that hearsay evidence, the applicants could not have been lawfully convicted. We therefore uphold the ground of review relied on by the applicants.

13. We add two observations. First, if Section 20 of the Evidence Act had been addressed it is conceivable that much of what the deceased said to the State witnesses would not have passed muster as dying declarations. An argument can fairly be made, having considered the transcript of the evidence, that the deceased made statements implicating the applicants at a time, early on the day of his death, that he did not believe he was about to die. So precondition (a) would not have been satisfied.
    
14. Secondly, the fact that the trial judge regarded the applicants’ alibis as weak and corroborating the State’s case, is inconsequential, as we have found, now, that the State’s case was very weak, as it was based on hearsay evidence.
    

CONCLUSION

15. The verdicts are unsafe and unsatisfactory as the trial judge erred in law by allowing hearsay evidence to be admitted, without conducing due inquiry into whether the evidence was admissible under Section 20 of the Evidence Act and, without that evidence, the applicants could not lawfully have been convicted. For the same reasons, the convictions entailed a wrong decision on a question of law and there was a material irregularity in the trial. There was a substantial miscarriage of justice.
    
16. What are the consequences? 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 (Ilai Bate v The State (2012) SC1216). 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.

17. The combined effect of those provisions is that the Supreme Court should grant these applications 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.
    

As stated earlier, we consider that each of Sections 23(1) (a), (b) or (c) apply and that there has been a substantial miscarriage of justice.

18. 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.

19. 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 convictions and then decide whether to:
    
    • direct that a verdict of not guilty be entered (under Section 23(3)); or
      
    • order a new trial (under Section 28(1)).
      
20. 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. We have considered those guidelines and decided that it would not be in the interests of justice to order a new trial, particularly because of the length of time that has passed since the death of the deceased and the length of time that the applicants have been in custody (almost eight years). We consider that the miscarriage of justice that occurred is best remedied by entering verdicts of not guilty.
    

ORDER

(1) The application for review is granted.

(2) The decisions of the National Court, convicting the applicants of murder and sentencing them each to 20 years imprisonment, are quashed, and their warrants of commitment are revoked.

(3) A verdict of not guilty is entered against both applicants.

(4) They shall be released from custody forthwith in so far as their detention in custody relates to the decisions of the National Court, the subject of this review.

________________________________________________
Public Solicitor: Lawyer for the Applicants
Public Prosecutor: Lawyer for the Respondent