Pritchard v State [2016] PGSC 59; SC1541 (13 October 2016)

SC1541

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 7 OF 2016

BETWEEN:

TAITA PRITCHARD
Appellant

AND:
THE STATE
Respondent

Waigani: Gavara-Nanu J, Hartshorn & Higgins JJ
2016: 2^nd September & 13^th October

CRIMINAL LAW – appeal – confessional Statement by co-accused not admissible against appellant – no adverse inference from refusal to make police statement – dock statement denying guilt – insufficient evidence to find joint purpose to harm deceased – acquittal substituted – conviction & sentence set aside

PNG Cases Cited:

Paulus Pawa v The State [1981] PNGLR 498
R v Simbene Dandemb [1969-70] PNGLR 207
Re Rights of a Person arrested or detained [1977] PNGLR 362
Tropea Kwapena v State [1978] PNGLR 321

Overseas Cases Cited:

Baker v R [2012] HCA 27
Bannon v R [1995] HCA 27; (1995) 185 CLR 1
Browne v Dunn(1893) 6R67(HL) (not “ER” as in Criminal Law & Practice of PNG, 3^rd ed)
Bunning v Cross (1978) 141 CLR 54; [1978] HCA 54
M^cDermott v R [1948] 76 CLR 514
MWJ v R [2005] HCA 74; (2005) 222 ALR 436
Peacock v The King [1911] HCA 66; [1911] 17 Argus LR 566
R v MAP [2006] QCA 220
R v Truong [1996] ACTSC 12
R v Swaffield & Davis [1998] HCA 1; (1998) 151 CLR 159
Ridgeway v R [1995] HCA 66, (1995) 184 CLR 49

Counsel:

Mr. R. Raka, for the Appellant
Mr. D. Mark, for the Respondent

13^th October, 2016

1. BY THE COURT: On 11 September 2015, the appellant, Taita Pritchard, was convicted by Salika DCJ on a charge of wilful murder. She was sentenced on 12 February 2016 to 30 years imprisonment.
   
2. The grounds of Appeal against conviction relate primarily to the reliance by the trial judge upon the confessional statement made by the co-accused, James Paru. That statement was challenged at trial by the co-accused but admitted into evidence by the trial judge after a voir dire hearing. James Paru had alleged to the trial judge that though the statement was made voluntarily, it was in consequence of a denial to him of his constitutional right to access to legal advice before being interrogated. A further ground was lack of any corroborative evidence.
   
3. At the hearing of these appeals, Mr Mark, for the State, conceded that sentence had been imposed on the appellant, by oversight, without administering allocutus or hearing any submissions on sentence. He conceded the appeal as to sentence had to be upheld.
   
4. However, real issues arise concerning the original finding of guilt. These may be expressed as follows:
   
   • (1) Was the confessional statement of James Paru, if rightly admitted into evidence, supportive of or able to be used in support of the State case against the appellant.
     
   • (2) Was the evidence properly admissible against the appellant sufficient safely and satisfactorily to find guilt beyond reasonable doubt of:
     • (a) Wilful murder;
     • (b) Murder; or
     • (c) Manslaughter.
       
5. Pursuant to s.531 (Criminal Code Act 1975), no other offence may be joined on an indictment alleging wilful murder. The joint trial of the co-accused is permissible under s.532 (9).

6. An alternative verdict of murder or manslaughter may be returned on a count alleging wilful murder. Further, alternatives of assault may be returned pursuant to s.539(4) of the Code. An offence under s.545 – (procuring commission of an offence) is not available as an alternative but is a form of the original offence alleged.
   
7. It was the prosecution case that the appellant was owed money by the deceased with whom she had had an intimate relationship. He had persuaded her to sell her house in Australia and give the money to him. In 2011, the deceased informed the appellant that he had a new girlfriend. The appellant went to the deceased’s boat, on which he was then living, and sought to retrieve her belongings. She, however, surreptitiously, stole the passports of the deceased and the new girlfriend. The prosecutor, in opening, continued:
   

“Taita then got in touch with the second accused, James Paru, through the nephew Chris Loau and hatched a plan to kill the deceased. On 22 July 2011, both Taita and James met at Gordons Industrial area and discussed the matter. Taita promised James K50,000 upon completion of the execution, your Honour. She gave him K100 which he later used to buy three cartridges to carry out the plan. On Saturday, 23 July 2011, Taita picked up James at around 8 to 9 am using a friend’s vehicle. She then instructed James to call the deceased and told him to meet him somewhere along Napanapa Road to retrieve the missing passports.

Taita then dropped off James at Napanapa and drove back towards Port Moresby. The deceased arrived at the location in his vehicle. He was then shot by the accused James Paru using a mossberg pump action shotgun ...”

8. The deceased’s body was discovered two days later at Napanapa. Chris Loau, it seems was nephew to both accused. The accused were cousins.
   
9. Each was, pursuant to s.7 of the Criminal Code Act 1975 (the Code), charged as a principal offender.
   
10. It is important to note the evidence his Honour received.
    
11. First was Detective Chief Sergeant Volo. He attended the crime scene. He also conducted a record of interview with the accused Paru. That was challenged on the voir dire.
    
12. This observation occurred before that challenge:
    

“Mr. Kuvi (State Prosecutor)

Your Honour, my understanding is that voir dire will only be conducted in relation to Mr. Paru.

... Because I have not received any notice in relation to Taita”.

13. Mr. Mesa (for the accused Paru) told his Honour that the objection was based on a failure of police to give accused Paru the opportunity to have legal advice before being interrogated (per s.42(2)Constitution).
    
14. Paru had by then been in custody for a week. Sergeant Volo said he believed he had already had legal advice. He could not recall if Paru was informed of his right to remain silent. However, the crime scene inspection statement was preceded by the following:
    

“Q5. “I must inform you that you are obliged to remain silent (sic) unless you wish to do so but whatever you do say will be written down and later given to the court as what you have said. Do you understand what I have said?”

The answer is “Yes sir”

15. That statement is, whatever its rendition in Pidgin, nonsensical. It fails to convey the conventional warning i.e.:

“You do not have to say anything unless you wish to do so but anything you do say will be taken down in writing and will be (or maybe) given in evidence.”

16. An accused should not only be asked if he/she understands that caution but, particularly where there are potential language barriers, also to say what he/she understands the caution to mean. In this case the original language was Pidgin.
    
17. The accused Paru was not told before attending the crime scene location of his rights under s.42 (2). Sergeant Volo assumed that had been done already. It was S/C Lison Salle who questioned the accused Paru. Of the 4 officers present, only Sergeant Volo and Detective Silas were well enough to give evidence.
    
18. S/C Lison Salle identified the ‘crime scene identification’ document of 10 pages. He agreed that he did not inform the accused Paru of his rights under s.42(2) of the Constitution. He assumed that had been done when Paru was arrested and charged.
    
19. The voir dire was interrupted by the Pathologist whose evidence was that the deceased was killed by shotgun blast, from an oblique angle but striking the front, including heart and lungs.
    
20. Potentially significant was Ms Joyce Sandi who provided an affidavit relating to records for mobile numbers 7337 6082, 7369 6366 and 7181 3534.
    
21. Sergeant Silas was next. He conducted the record of interview with the appellant on 13 September 2011. That statement contains no admission of guilt.
    
22. The appellant did agree however that the deceased had seen “other girls” during their relationship (Q58) and that she told him that was “not fair” (Q60). She had reported him to police for assaulting her (Q62 & 63). She acknowledged her mobile no. as 7337 6082 (Q105). She was not asked about no. 7369 6366 or 7181 3534.
    
23. The confessional statement of the accused Paru was then tendered to his Honour. It was objected to and Detective Silas was cross examined about it by the counsel for Paru. He conceded that, despite the gravity of the matter, he did not offer the accused Paru the opportunity for legal advice. By contrast he did offer that opportunity to the appellant and she declined to answer any questions bearing on the facts of the matter (save as noted above) after availing herself of that advice.
    
24. It was clear from the answers Detective S/C Silas gave to His Honour that he knew Paru was a suspect in the murder of Mr Hulse but considered that, as he was, apparently, willing to make a confessional statement, alerting him to his constitutional rights was an unnecessary formality.
    
25. His Honour then adjourned the matter to enable Mr. Mesafor the accused, Paru, to research the consequences opened up by Detective S/C Silas’ evidence.
    
26. The case then resumed the following day.
    
27. The State Prosecutor referred to Re Rights of a Person arrested or detained[1977] PNGLR 362, submitting it was a matter of discretion to allow or not the tender of the statement into evidence.
    
28. Mr Mesa,for the accused Paru, made submissions based on M^cDermott v R [1948] 76 CLR 514. He did not refer to later Australian authority such as Bunning v Cross (1978) 141 CLR 54; [1978] HCA 54.
    
29. His Honour did allow Mr. Mesa to call the accused Paru on the voir dire. The latter said that when the police arrived at his home, he was threatened with a firearm. He felt ill and was lying down at the time. He saw Chris Loau, who was with the police and he was limping. He was afraid, he said. So he surrendered “the gun” to them. He was taken to the police station alone. He was not warned or told he could speak with family members or a lawyer.
    
30. In cross-examination, he agreed that he had not previously revealed this version of events. He was asked, in breach of his client/lawyer privilege, when he told his lawyer of this. He responded:
    

“I would say that Mr. Aaron Silas knew that. I thought that I would say it in the court that is why I did not say that to my lawyer.”

31. He further suggested that he was not aware of what was being written down as his statement.
    
32. In submissions, the prosecutor asserted that the complaint of oppressive treatment was a recent invention and violated the so-called rule in Browne v Dunn(1893) 6R67(HL) (not “ER” as in Criminal Law & Practice of PNG, 3^rd ed). As to the scope of that rule and its limitations in criminal proceedings relative to an accused person – see MWJ v R [2005] HCA 74; (2005) 222 ALR 436; R v MAP [2006] QCA 220.
    
33. Generally, it will be inapplicable to an accused who is not represented. Even if the omission is that of counsel, an adverse inference to an accused should not be readily drawn. The available adverse inference is of recent invention. The competing inference is of oversight or tactical error.
    
34. The learned trial judge delivered his ruling orally but after adjourning to reduce it to writing.
    
35. His Honour observed (114 AB) that “there is no issue on the voluntariness of the confessional statement”. That did not fairly reflect the evidence Paru had given.
    
36. The “only issue”, his Honour opined, was as to the failure to advise the accused Paru of his constitutional right to speak with a lawyer first.
    
37. His Honour observed (115) AB:
    

“Maybe the police ought to have given him the opportunity to speak to a lawyer. I do not know. Section 42 although it is in mandatory terms, does not spell out as to what should happen in situations or circumstances like this. Whether the police should inform him right at the - and carry it out or if it is volunteered, should they stop him and say that you should wait until you had seen a lawyer. But in this case, the police are doing an investigation and it is only in their interest that they complete the investigation as soon as possible.”

38. It is somewhat difficult to understand what urgency prevented police from according the accused Paru his constitutional rights. They had the crime scene, the body, the weapon, all they lacked was a confession from the accused persons who were in custody. The whole point of the caution is to alert a suspect to his or her right to remain silent and enable him or her to voluntarily choose to speak or not after being properly informed of his or her constitutional rights. Further, there is a strong public interest in ensuring that those charged with the duty of enforcing the law themselves obey it. Thus evidence obtained by unlawful conduct may rightly be excluded (see Ridgeway v R [1995] HCA 66, (1995) 184 CLR 49). Exclusion is a discretionary decision. In R v Truong [1996] ACTSC 12, Miles CJ (formerly a judge of this Court), set out very helpfully the considerations which might lead to an exclusion of a confessional statement. That also applies to an engagement in a crime scene re-enactment. That decision includes references to the Evidence Act 1995 (Cth) which at ss.137&138 enacts in statutory form the considerations which may lead to exclusion of evidence unlawfully or improperly obtained.
    
39. One element of unfairness that cannot be overlooked is the effect of denying to an accused person the free exercise of his or her right to silence. (see R v Swaffield & Davis [1998] HCA1; (1998) 151 CLR 159).
    
40. The process for the exercise of discretion to exclude evidence improperly or unfairly obtained is to identify and weigh up factors favouring exclusion and those favouring admission.
    
41. The evidence disclosed that James Paru had been a soldier. The prosecutor suggested that implied that he knew he need not speak to police. A contrary implication might well be that he was used to complying with those in authority. It was certainly not as extreme a case as R v Simbene Dandemb [1969-70] PNGLR 207, where the accused were called as witnesses by the prosecution to give evidence against each other. However, it is certainly not clear that James Paru was aware of his constitutional and legal rights before his interrogation, or, particularly, his “confessional statement”.
    
42. The accused Paru chose to give evidence on the voir dire. He was not cautioned, he deposed, before the ‘crime scene indication’. That was consistent with police evidence. The statement which he signed, did however, contain a reference to his right to remain silent. The record of interview,however, followed 5 days after the ‘crime scene indication’. The “confessional statement” preceded each of those events.
    
43. His Honour rejected the “crime scene report” as being obtained unfairly (AB 151). The prosecution did not tender the record of interview. However, his Honour did admit the confessional statement, apparently on the basis that its voluntariness was not challenged.
    
44. That was the State case.
    
45. The ‘confessional statement’ was in the following terms:
    

“

ROYAL PAPUA NEW GUINEA CONSTABULARY	FORM 12 (A)
	FIRST SHEET
STATEMENT Surname in Capitals	Date: 26th /08/11 Christian Names
Name of Witness: PARU	JAMES
Occupation: UNEMPLOYED	Age: 49 YEARS
Address: RESIDES AT SABAMA SECT 39 LOT 23, MAMUTU STREET

CONFESSIONAL STATEMENT

THIS CONFESSIONAL STATEMENT WAS TAKEN BY S/CONSTABLE AARON SILAS OF CID ARMED ROBBERY SQUADAT CID ARMED ROBBERY OFFICE BOROKO POLICE STATION ON THE 26^TH OF JULY 2011 AT 09:30 HRS IN THE PRESENCE OF DETECTIVE S/CONSTABLES LAWRENCE WELLEN AND EMMANUEL FOFOSAIR.

“YOU DO NOT HAVE TO SAY ANYTHING UNLESS YOU WISH TO DO SO BUT ANY THING YOU DO SAY WILL BE TAKEN DOWN AND GIVEN TO COURT AS EVIDENCE” DO YOU UNDERSTAND?

My full name and address is as stated above and I am from Hisiu Village, Bereina in the Central Province, I am a former soldier with the Papua New Guinea Defense Force having served the force from 1980 to 1990 total of 10 years.

After I was honorably discharged from the Defense Force I was employed doing odd jobs around the National Capital District until the end of last year.

I can recall on the 21^st of July 2011, Taita Sarah Prichard called my nephew Chris LOAU on his digicel phone and request to talk to me. Taita is my cousin sister who lives in Australia. She is also an Australian Citizen.

I spoke to her on the phone and she told me that she had a problem and wanted to talk to me and asked me to go and meet her at Gabaka Street Gordons opposite the Hitron Office.

On the 22^nd of July 2011, I got on a PMV Bus from Sabama and went all the way to the Hitron Office. I arrived at the Hitron Office and she called me and directed me to go to the Flick Pest Control Office and go to the back where she was staying in one of the flats there.

I met up with her and she started to tell me all her problems. She told me that she had a big problem with her boyfriend who was a white man. She said that he owed her a lot of money worth about K300,000 and every time she asked about when he was going to repay her money the white man always belt her and threaten to kill her and hide her body and no one will ever know. She was very upset and was crying and telling me all her problems.

I asked her what she wanted to be done to the man and she said and I quote ‘Just terminate him I don’t want to see him anymore’.

I paused for a while and asked her again if she was serious with what she was saying. She replied and said that she made up her mind and she just wanted me to get rid of the man.

After talking to her she gave me K100. I went and got on a PMV bus and went down to Sabama market. While at the market I bought 3 cartridges from some youth on the side of the road leading into Sabama and walked up to my house.

On the 23^rd of July 2011 at about 0830 hrs Taita called and told me to go down to the main Sabama Bus stop and meet her there. I packed my Mossberg pump action into bag and walked down to the bus stop and waited for her. She arrived in a white sedan and told me that it was good time and we have to hurry up and complete the task.

I got on the vehicle with her and we drove down to the Kone Mobile Service Station opposite the Hubert Murray Stadium and she told me that she cannot make a call to her boyfriend and told me to make the call to him. She told me to tell him to come to Napanapa and pick up his passport and visa.

I called the boyfriend and told him to go to Napanapa and met (sic) me there and get his passport. When he heard that he told me that he will head there right away.

We drove to Napanapa and she dropped on the side of the road and I walked over to the side of the hill close to the Napanapa Oil Finery and wait for the boyfriend to come. I waited for a while and I saw a green Honda CRV Sedan drove up the road. I stood up and the driver of the vehicle saw me and drove up to me.

He got out of the vehicle and I could see that he was a white man in his 50s and about 5 feet 6 inch tall. I could see that the white man had a pistol tucked in his beach wear. I took aim at him and told him to stand and turn around.

Instead I saw the white man reached for his pistol so I pressed the trigger of my gun and I saw the white man fell to the ground. I did not stand around to check. I went quickly down to the Whiteman’s car got on and drove off.

While driving towards the junction of Porebada Road, Taita called me to confirm if I had complete the task and I told her Your will has been done.

I drove to Koukou village and left the vehicle there and walked back to the main road where she came and picked me up and we drove back to Sabama Bus Stop and dropped me off. I went home to my house and buried the gun next to my house.

On Friday the 26^th of August 2011 at about 0900 hrs I was at my house when Police Detectives from Boroko Police Station came to my House and asked me for the shot gun. I showed them where I had hidden the gun and they dug it out and took me to Boroko Police Station where I made this statement.

I...JAMES PARU.................certify that this statement of ...3.... pages

is true to the best of my knowledge and belief. I make it knowing that if it be tendered in evidence, I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.”

46. It is important to note that whatever inferences may be drawn against James Paru from this statement, it has no evidentiary value or weight against the appellant. (see Bannon v R [1995] HCA 27; (1995) 185 CLR 1 Baker v R [2012] HCA 27). It was inadmissible against her.
    
47. Even if such evidence had been given in admissible form at trial, the trial judge would have needed to warn himself that such evidence should not be used against a co-accused unless corroborated – See Peacock v The King [1911] HCA 66; [1911] 17 Argus LR 566. There would have been no obligation on the appellant, even if Paru had given sworn evidence to the same effect at the trial, to offer contrary testimony.
    
48. At the close of the prosecution case the only evidence implicating the appellant in the actions attributed to James Paru was the evidence of her text messages.
    
49. There was also evidence by Raymond Mojica, a work colleague of the deceased. He had some telephone conversations with the appellant. On 23 July 2011, she had rung him to say that she was concerned that the deceased was not answering her calls. He had several conversations with the deceased up to 11:10am. At 11:30am he rang the deceased’s phone but got no answer then or subsequently. The appellant rang him between 6:30 and 8pm to find out if the deceased had been in contact. That evidence was consistent with a lack of expectation by the appellant that the deceased was to be killed, though it is evidence that could have been disregarded.
    
50. Mr Rao Kila stated that he found the body of the deceased between 12 midday and 1pm at the area of Napanapa Road about 2 metres off a track. Lawrence David corroborated this statement.
    
51. Agnes Taita Hauramas wore an affidavit which was tendered in evidence in which she translated from the Roro language statements appearing in that language from the appellant’s phone messages.
    
52. The statements are set out below:
    

“ANNEXURE B”

TRANSLATED TEXT

No.	TEXT	TRANSLATION (TO ENGLISH)
1	“anekepa”	OLD MAN/WOMAN
2	“wa’a ha pate pouna”	THEY SHOULD HIT/BELT HIM/HER SOMEWHERE
3	“eu nuata kate pou haraina ke’iovina...e’u nuatae ravi ka set up na..”	I WANT THEM TO REALLY HIT/BELT HIM/HER GOOD SO HE/SHE WILL KNOW...I WANT TO SET HIM/HER UP IN THE NIGHT.
4	“nata’u ia”	I AM SCARED BUT

”

53. Constable Dabada Kobua deposed to the accuracy of a number of crime scene photographs.
    
54. Photographs 46 – 102 showed James Paru indicating features of the crime scene. Strictly speaking, in view of his Honour’s ruling, those photographs were not admissible in evidence even against James Paru.
    
55. The latter made a dock statement. In it, he did not deny, in terms, the truth of his “confessional statement” but he did protest that it was not voluntarily given but was dictated by police.
    
56. The appellant also made a dock statement.
    
57. She said:
    

“ Your Honour, I financed John Hulse while he was alive.

His Honour: Sorry?

I financed John Hulse, the deceased, and I was having trouble getting my money back from him.

His Honour: Yes

Every time I asked him, I was beaten so I decided to call my cousin, James Paru, just talk to him. All I wanted was for him to talk to John Hulse and that was it, for John Hulse to refund my moneys (sic). There was no plan. There was no plan or discussion on killing Mr. Hulse. That is all, your Honour.”

58. That statement, albeit it is unsworn and not subject to cross-examination nevertheless did not support the allegations of guilt against the appellant. Nor did James Paru’s statement, although, being unsworn, such a statement would not have been evidence against her in any event.
    
59. The prosecutor, opened his submissions with the following.
    

(AB 159)

“Our submissions, your Honour, first of all we note briefly the law on accomplice evidence given the fact that James Paru had in his statement implicated the accused Taita Pritchard”.

60. That statement was questionable enough.

61. He then went on to assert that on the facts admitted in his confessional statement, though he asserted that he fired in self-defence, the accused Paru was denied that defence by virtue of s.270(2) of the Code.
    
62. That is not the effect of s.270(2). To deny that defence would require a finding that James Paru approached John Hulse with the intent either to kill or do grievous bodily harm to him. If it was possible that he did not do that but intended to simply threaten him with the shotgun then it would be possible to rely on self-defence if John Hulse had or was believed to have, a firearm which he was about to deploy. (see Tropea Kwapena v State [1978] PNGLR 321).
    
63. Mr. Mesa, for James Paru, argued that little weight should be afforded the confessional statement of his client. He pointed to a text message suggesting the deceased be “taught a lesson”. He pointed out that this was consistent with non-lethal force being intended.
    
64. Mr. Kaluwin, for the appellant, merely submitted that the confessional statement of James Paru should be “disregarded”.
    
65. His Honour did acknowledge in argument that the confessional statement was evidence only against James Paru. The defence submission was that any evidence emanating from James Paru needed to be corroborated, he being an alleged accomplice. That, of course, missed the point. It was simply inadmissible. The lack of corroborative evidence went to the strength of the State case otherwise.
    
66. Again, in reply, the prosecutor relied on the facts stated by James Paru concerning the meeting between him and the appellant, the purchase of cartridges paid for by her and that she drove him to meet John Hulse at a ‘secluded’ spot and that he told her “your will has been done” after the shooting. None of that was supported by any evidence admissible against her.
    
67. The case was adjourned on 23 March 2015. It resumed on 11 November 2015 when his Honour read a written decision.
    
68. His Honour found James Paru guilty, rejecting his plea of self-defence. He inferred he had an express intention to kill by reference to:
    
    • (184) “...James’ actions before the commission of the offence. He was given K100 by Taita ... At the bus station Taita picked him up and Taita drove to Konedobu Mobil Service Station. Taita gave James her phone to ring John ...
      

... Taita then drove James to Napanapa and dropped him off there ... After the shooting of John ... Taita called him to confirm if he had completed the task to which he told her “your will has been done.”

69. Those findings were supported only by the confessional statement of James Paru. That justified those findings of fact against him but not the appellant.
    
70. It is further to be noted that whilst the appellant acknowledged 7377 6082 as her phone number, the other two numbers, 7369 6366 and 7181 3534, though asserted by Detective S/C Silas in questioning the appellant, to be those of Chris Loau and James Paru respectively, are not identified as such by Ms. Sandi (see 213 – 4).
    
71. It follows that there was no evidence, other than the confessional statement of James Paru that there was any communication between him and the appellant, save in so far as her dock statement acknowledged some such communication.
    
72. No adverse inference can be drawn from the decision by the appellant not to answer police questions nor from her decision to make a dock statement rather than to give evidence. That is the law both in Australia and PNG. – see Paulus Pawa v The State [1981] PNGLR 498.
    
73. The State had to prove, beyond reasonable doubt, that the appellant conspired with James Paru and procured him to kill John Hulse. It is not sufficient to show that Paru shot Hulse to death. It is not alleged that Loau procured Paru to shoot Hulse or that he conveyed any instruction from the appellant to Paru to kill or to even seriously harm the deceased. The telephone records were very simply, insufficient to show that the appellant was communicating with either Paru or Loau. The prosecution was left with only the confessional statement, inadmissible against the appellant. It is not simply that it was not corroborated, it was, as against the appellant, hearsay and inadmissible. It could not be inferred from the appellant’s dock statement that she believed James Paru would be armed, or do more than “talk” to the deceased.
    
74. It follows that the convictions and sentence imposed upon the appellant must be set aside.
    
75. If the evidence is incapable of proving the guilt of the appellant beyond reasonable doubt, a verdict of acquittal must be substituted.
    

________________________________________________________________Posman Kua Aisi Lawyers: Lawyers for the Appellant
Public Prosecutor’s Office : Lawyers for the Respondent