Kapuni v State [2016] PGSC 21; SC1506 (27 April 2016)

SC1506

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 22 OF 2010

KELLY KAI KAPUNI
Appellant

V

THE STATE
Respondent

Mt Hagen: Cannings J, Geita J, Pitpit J
2016:25^th and 27^th April

CRIMINAL LAW – appeal against conviction for wilful murder – Supreme Court Act, Section 23(1) – whether reasonable doubt about safeness or satisfactoriness of verdict – alleged errors of fact by trial judge – whether evidence of State witnesses unreliable due to their relationship with the deceased and each other – whether accused can be convicted of a shooting death without evidence he shot the deceased – whether inconsistencies in evidence of State witnesses made verdict unsafe and unsatisfactory.

The appellant was convicted after trial of one count of wilful murder and sentenced to 25 years imprisonment. The trial judge found that between 11.00 am and 12 noon the deceased and others were walking along a road to a village, to pay compensation. A group of men including the appellant hid near a school waiting for the deceased’s group. As the deceased’s group approached, the appellant’s group ambushed them and opened fire with guns. The deceased was shot in the back by a member of the appellant’s group – not the appellant – and killed. The trial judge relied on the evidence of three State witnesses, who were members of the deceased’s group, who identified the appellant as being present and armed. His Honour found that the State witnesses were convincing and gave credible and consistent evidence. He rejected the alibi evidence of the appellant and two defence witnesses who testified that the appellant was at another place at the time. , appearing before the Village Court, in relation to a matter not related to the compensation issue in which the deceased’s group was involved. His Honour found that the defence evidence was inconsistent, unreliable and false and that the appellant was an unconvincing witness. He applied the principles on identification evidence arising from John Beng v The State [1977] PNGLR 115 and concluded that the appellant was present and participated in the incident. The appellant was found guilty under both Section 7(1) (c) (aiding another person who directly committed the offence) and Section 8 of the Criminal Code (forming a common intention with others to prosecute an unlawful purpose in the course of which the offence of wilful murder, being a probable consequence, was committed).

The appellant’s notice of appeal raised three grounds: (a) error of fact in finding that the deceased was killed near the school, as he was in fact killed at a fighting zone; (b) error of fact and law in accepting the State witnesses’ evidence as they were related to the deceased and each other, and there were no independent witnesses to corroborate their evidence; (c) error of fact and law in finding that the appellant was guilty, as there was no evidence that he fired the shot that killed the deceased. In addition: (d) the appellant put a number of arguments to the Court, not included in the notice of appeal, pointing to alleged deficiencies and inconsistencies in the evidence of the State witnesses and alleged errors by the trial judge in rejecting the alibi evidence.

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 four grounds of appeal against conviction were arguments that the conviction was unsafe and unsatisfactory. All were dismissed as: (a) the was no evidence before the Court that the deceased was killed at any other place than the school; (b) there is no rule of law or practice that State witnesses must be independent in the sense of being not related to the victim of an offence; (c) an accused can be convicted of a homicide offence involving death by shooting even though there is no evidence that he fired the shot that killed the deceased; and (d) the trial judge adequately addressed the alleged deficiencies and inconsistencies in the evidence of the State witnesses and reasonably concluded that the alibi defence of the appellant should be rejected.

(3) There was no miscarriage of justice, so the appeal was dismissed.

Cases cited:

The following cases are cited in the judgment:

Brian John Lewis v The State [1980] PNGLR 219
John Beng v The State [1977] PNGLR 115
The State v Kelly Kai Kapuni & James Yakopis, CR 1100 of 2009 & CR 21 of 2010, 14.05.10, unreported

APPEAL

This was an appeal against conviction for wilful murder.

Counsel:

K K Kapuni, the Appellant, in Person
P Kaluwin, for the Respondent

27^th April, 2016

1. BY THE COURT: Kelly Kai Kapuni was convicted by the National Court of one count of wilful murder and sentenced to 25 years imprisonment. He appeals against his conviction. He also appealed against the sentence but he abandoned that part of the appeal at the hearing.
   
2. The appellant was convicted of the wilful murder of Kaboi Kurai at Yomadaka in the Porgera District of Enga Province. The offence was committed on Wednesday 26^th November 2008. The trial judge, Justice Ellis, found that between 11.00 am and 12 noon the deceased and others were walking along a road to Kolarik village, to pay compensation. A group of men including the appellant hid near Yomadaka Primary School waiting for the deceased’s group. As the deceased’s group approached, the appellant’s group ambushed them and opened fire with guns. The deceased was shot in the back by a member of the appellant’s group – not the appellant – and killed.
   
3. The trial judge relied on the evidence of three State witnesses, who were members of the deceased’s group, who identified the appellant as being present and armed. His Honour found that the State witnesses were convincing and gave credible and consistent evidence. He rejected the alibi evidence of the appellant and two defence witnesses who testified that the appellant was at another place at the time, appearing before the Village Court, in relation to a matter not related to the compensation issue in which the deceased’s group was involved. His Honour found that the defence evidence was inconsistent, unreliable and false and that the appellant was an unconvincing witness.

4. His Honour applied the principles on identification evidence arising from John Beng v The State [1977] PNGLR 115 and concluded that the appellant was present and participated in the incident. He found him guilty under both Section 7(1) (c) (aiding another person who directly committed the offence) and Section 8 of the Criminal Code (forming a common intention with others to prosecute an unlawful purpose in the course of which the offence of wilful murder, being a probable consequence, was committed).
   
5. The appellant was jointly tried with his co-accused, James Yakopis, who was also found guilty and sentenced to 25 years imprisonment (The State v Kelly Kai Kapuni & James Yakopis, CR 1100 of 2009 & CR 21 of 2010, 14.05.10, unreported). James Yakopis also appealed against his conviction, however his appeal was dismissed for want of prosecution as he escaped from custody.
   

GROUNDS OF APPEAL

6. The appellant’s notice of appeal raised three grounds of appeal:
   
   • The deceased was murdered at the fighting zone.
     
   • State witnesses were people (men) involved in the fight (tribal fight).
     
   • I did not actually fire the gun and kill him.
     
7. The appellant, who represented himself, raised other arguments in his oral and written submissions, not included in the notice of appeal, pointing to alleged deficiencies and inconsistencies in the evidence of the State witnesses and alleged errors by the trial judge in rejecting the alibi evidence. Mr Kaluwin, for the State, did not object to those arguments being put to the Court, so we have considered them and categorised them as an additional ground of appeal.
   
8. We regard the appeal as consisting of four grounds, which can properly be described as follows:
   

(a) the trial judge erred in fact in finding that the deceased was killed near the school, as he was in fact killed at a fighting zone;

(b) the trial judge erred in fact and law in accepting the State witnesses’ evidence as they were related to the deceased and each other, and there were no independent witnesses to corroborate their evidence;

(c) the trial judge erred in fact and law in finding that the appellant was guilty, as there was no evidence that he fired the shot that killed the deceased;

(d) the trial judge erred in fact and law in failing to take account of deficiencies and inconsistencies in the evidence of the State witnesses and rejecting the alibi evidence.

APPROACH TO APPEALS AGAINST CONVICTION

9. 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.
     
10. 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.

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

GROUND (a): ERROR OF FACT IN FINDING THAT THE DECEASED WAS KILLED NEAR THE SCHOOL

12. This is a curious argument as there was no evidence before the National Court that the deceased was killed at any other place than the school. It was an undisputed fact that the deceased was shot and killed in the vicinity of the school. There was no evidence that he was shot anywhere else. The key issues at the trial were whether there was good identification evidence putting the appellant at the crime and whether the alibi evidence was sound. Ground (a) is dismissed.
    

GROUND (b): ERROR OF FACT AND LAW IN ACCEPTING THE STATE WITNESSES’ EVIDENCE, AS THEY WERE RELATED TO THE DECEASED

13. The appellant submitted that the trial judge erred in fact and law in accepting the State witnesses’ evidence as they were related to the deceased and each other, and there were no independent witnesses to corroborate their evidence.
    

We reject this argument as there is no rule of law or practice that State witnesses must be independent in the sense of being not related to the victim of an offence. Provided that the trial judge considers the totality of their evidence in accordance with settled principles, the court is entitled to accept the evidence of witnesses who are not independent in that sense.

14. The trial judge assessed the evidence of the State witnesses in the following way at paragraphs 37 and 38:
    

The evidence of the three State witnesses was different because they were in different places, were not looking in the same direction and did different things. That accords with common sense. Their evidence overlaps on the crucial aspects of this case, namely the presence of the first accused [the appellant] and the second accused on this occasion, their participation in the ambush and that they were both carrying a gun.

I do not find merit in any of the criticisms of their evidence. They appeared to be truthful witnesses whose version of the events relevant to the proceedings was not damaged by cross-examination. I accept their evidence.

15. We consider that the trial judge assessed the evidence of the State witnesses in totality. His Honour assessed them as truthful witnesses. He was in the best position to make that assessment. It is not proper, unless there are exceptional circumstances, for the Supreme Court to second-guess a trial judge’s assessment of whether a witness has told the truth. The superior position of the trial judge must be respected. As Miles J stated in Brian John Lewis v The State [1980] PNGLR 219:
    

On a question of credit of a witness the trial judge is in a superior position and his assessment is not likely to be rejected. Where the decision is ultimately and largely an individual matter of opinion, for instance in apportioning blame for contributory negligence, or assessing damages for pain and suffering, the trial judge's finding, based on his own opinions, should carry substantial weight. So too where the finding is one of a "primary fact" or "evidentiary fact" rather than an inference from such facts (if the distinction may be drawn), the trial judge's decision should rarely be disturbed.

16. It is also clear that when the trial judge addressed his mind to the crucial question of whether the State witnesses were truthful witnesses he took into account that they were related to the deceased. At paragraph 50, his Honour stated:
    

I also recognise that even a convincing witness may be mistaken: Ono v The State (2002) SC698. However, in this case, there was nothing in either the content of the evidence of the State witnesses or how that evidence was given that would warrant a rejection of their evidence. I note that the identification evidence in this case came from not one but three witnesses and that reduces the likelihood of mistaken identity, even allowing for the fact that the State witnesses were relatives of the deceased and thereby of each other.

His Honour gave sufficient weight to the relationship between the State witnesses and the deceased and did not err in accepting their evidence. We dismiss ground (b).

GROUND (c): ERROR OF FACT AND LAW AS NO EVIDENCE THAT THE APPELLANT FIRED THE SHOT THAT KILLED THE DECEASED

17. The appellant argues that he should not have been found guilty of wilful murder as there was no evidence that he fired the shot that killed the deceased.
    

It is correct that there was no evidence that the appellant fired the fatal shot. In fact, the trial judge expressly found that the appellant did not fire that shot. His Honour found that the shot was fired by a member of the appellant’s group. That did not mean, however, that the appellant should have been found not guilty.

18. An accused can properly be convicted of a homicide offence involving death by shooting even though there is no evidence that he fired the shot that killed the deceased. Such an accused can be convicted, as in this case, under Sections 7 and/or 8 of the Criminal Code.
    

Section 7(1) (principal offenders) states:

When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

19. Section 8 (offences committed in prosecution of common purpose) states:
    

Where—

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.

20. In this case his Honour properly found, based on the evidence of the State witnesses, that:
    
    • the appellant was among the group of men who hid near Yomadaka Primary School as the deceased’s group approached;
    • the appellant was armed with a loaded firearm;
    • he was an active member of the group that ambushed the deceased’s group;
    • shots were fired by members of the appellant’s group;
    • the deceased was shot in the back by a member of the appellant’s group;
    • the appellant did not fire the shot;
    • as a result of the shot, the deceased died;
    • at the time there was a preventive order in place, which applied to the area of the ambush.
      
21. His Honour, despite finding that the appellant did not fire the fatal shot, found him guilty under both Sections 7 and 8. As to Section 7, his Honour stated:
    

The effect of that section is that people who were present when an offence is committed can be found guilty of that offence in certain circumstances. One of the situations covered by Section 7 is when a person aids someone else in the commission of an offence: Section 7(1) (c).

It is clear that the first accused [the appellant] and the second accused were present and participating in this ambush and attack in that they were hiding before the ambush, present when the attack occurred and joining with the others when they shouted and sang after two men had been shot. As a result, Section 7 renders them guilty even though the evidence does not suggest that either of them was the person who fired the bullet which killed the deceased.

22. As to Section 8, his Honour stated:
    

The act of going to the place of this ambush and attack, of hiding in the bush, of carrying guns and of being together after two men were shot, is evidence which warrants a finding that the first accused [the appellant] and the second accused, together with others, formed a common intention to mount this attack, and the probable consequence of joining in such an attack, to which loaded guns were taken, warrants a finding that the first accused [the appellant] and the second accused were part of a common purpose which resulted in the death of the victim.

We find that his Honour’s reasoning was sound and correctly explains why and how the appellant was convicted of wilful murder, even though he did not fire the shot that killed the deceased. We dismiss ground (c).

GROUND (d): ERRORS OF FACT AND LAW IN FAILING TO TAKE ACCOUNT OF DEFICIENCIES AND INCONSISTENCIES IN EVIDENCE OF STATE WITNESSES, AND IN REJECTING THE ALIBI EVIDENCE

23. These arguments were set out in the appellant’s written submission and can be summarised as follows:
    
    • (i) The State witnesses’ evidence is not credible as they did not give their stories, implicating the appellant, to the Police until some months after the date of the offence. This is evident from the fact that the appellant was not arrested until 14 April 2009, more than four months after the incident.
      

(ii) The evidence of the second State witness, Sakane Yakop Kurai, should not have been believed as he said that after the shots were fired he went looking for the suspects, armed only with an axe.

• (iii) All State witnesses said that the appellant was wearing a yellow tee-shirt, but they were unable to give consistent evidence about what other gunmen were wearing, which indicates that they had collaborated to give false evidence against the appellant.
  
  • (iv) State witness Amos Kona said that he observed four of the gunmen, after the shots were fired, from a distance of 10 to 12 metres, for two minutes. This was not credible evidence as, if it were true, this witness would have also surely been shot dead.
    

(v) State witness Sakane Yakop Kurai gave unbelievable evidence. He said that when the deceased and another member of his group were shot, they were only five metres in front of him, so he went to see where the shots had come from and that is when he identified the appellant and two others. That evidence should not have been accepted.

(vi) State witness Sakane Yakop Kurai gave conflicting evidence about who fired the shot that killed his brother, the deceased, and his evidence should not have been accepted.

(vii) State witness Benjamin Sapisi gave incredible evidence that he observed the appellant from a distance of five to six metres over a period of ten minutes, and his evidence should not have been accepted.

• (viii) All State witnesses gave evidence that the appellant was un-masked, which is incredible evidence as it is too difficult to believe that the appellant, who was employed at the Porgera Mine at the time, would risk his job and livelihood and enhance the prospect of being apprehended, by committing such an offence in public without hiding his identity.
  

(ix) The State witnesses Amos Kona and Sakane Yakop Kurai gave conflicting evidence about the number of gunshots they heard, however the inconsistency was not considered by the trial judge.

(x) The trial judge unfairly rejected the alibi evidence by failing to take into account the period of four months between the date of the incident (26 November 2008) and the date of the appellant’s arrest (14 April 2009), which made it difficult for the appellant to gather evidence to support his alibi.

24. We do not propose to address each of those arguments in detail as they do not form part of the formal grounds of appeal and leave was not sought to raise them. We have, however, considered them as the State did not object to our doing so, and it is in the interests of justice for the appellant, who is in custody serving a lengthy sentence, to know that he has been given a fair hearing.
    
25. We do not find any of these arguments persuasive. We consider that the learned trial judge took them into account and gave them appropriate weight. His Honour clearly set out and properly applied the principles of identification evidence and concluded that it was of high quality. He acknowledged some apparent inconsistencies but concluded that the evidence was not so much inconsistent, but different in some respects as the three State witnesses were in different places when the shots were fired, and they identified the appellant in different circumstances and from different angles.
    
26. The ultimate and telling consideration was that his Honour regarded each of the State witnesses as honest and truthful witnesses who identified the appellant as being present and armed and an active participant in the ambush and attack. His Honour properly weighed that reliable identification evidence against the alibi evidence which was inconsistent and weak and unreliable and given by witnesses who, in his Honour’s assessment, gave false evidence. We find that his Honour, if not expressly on each point, tacitly and adequately and fairly dealt with all the appellant’s arguments. There were no errors of fact or law in his Honour’s assessment of the State’s case or the alibi evidence. We dismiss ground (d).
    

CONCLUSION

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. The appeal must be dismissed.

ORDER

(1) The appeal is dismissed.

(2) The decision of the National Court is affirmed

______________________________________________

Public Prosecutor: Lawyer for the respondent