Sheekiot v Independent State of Papua New Guinea [2019] PGSC 56; SC1824 (5 June 2019)

SC1824

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 45 of 2017

BETWEEN:
JEFFREY SHEEKIOT
Appellant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Respondent

Waigani: Kandakasi DCJ, Hartshorn J, Geita J
2019: 29^th April,
: 5^th June

SUPREME COURT APPEAL - Appeal against conviction for wilful murder – death from gunshots – wounds not matching bullets fired – bullet sizes before and after being fired and fragmentation – more than one source of gunshot – no clear evidence of intention to kill – conviction based purely on circumstantial evidence – guilt not the only inference available – lack of forewarning before acting on circumstantial evidence – conviction unsafe

Cases Cited:
Papua New Guinea Cases

John Beng v. The State [1977] PNGLR 115
The State v. Tom Morris [1981] PNGLR 493

Overseas Cases

Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82: 50 ALJR 108

Counsel:

Ms. G. Salika, for the Appellant
Mr. P. Kaluwin, for the Respondent

5^th June, 2019

1. BY THE COURT: This is a decision on an appeal against a conviction and the sentence imposed for the crime of wilful murder.

2. The appellant, a policeman, was convicted of one count of wilful murder after a trial and sentenced to thirty years imprisonment in hard labour. The State alleged that the appellant in the course of his duties as a policeman, whilst travelling in a police vehicle, was chasing another vehicle (Camry). In the Camry was a 12-year-old child, Feline Bune, and her mother. The appellant fired several shots from a gun in his possession at the Camry. The State alleged that Feline Bune died from a loss of blood from injuries sustained as a result of those gunshots and that the appellant had the requisite intention to kill when he fired at the Camry.

3. The appellant appeals on numerous grounds. As the State submits, those grounds question whether the verdict of the primary judge was safe and satisfactory. The State submits that amongst others, that the specific grounds of appeal have no merit. Further, even if any one of those grounds have merit, no miscarriage of justice has occurred.

Consideration

4. The appellant submits that his conviction was based purely on circumstantial evidence and that his conviction was made in the absence of any warning or caution by the primary judge of the dangers of entering a conviction on the uncertain and unsafe evidence which was put before the Court.

5. At [19] – [22] of his judgment the primary judge stated:

“19. The Court is ultimately satisfied beyond reasonable doubt that the deceased died from excessive loss of blood from three bullet wounds and those bullets were discharged from a bushmaster rifle.

20. On the evidence, the only person that discharged a bushman rifle at the Camry was the accused. There is no evidence of any gun shots fired from the first car. If shots were fired from the first car, the accused and his colleagues would have pursued that vehicle. They did not. It means that the first vehicle had managed to avoid the accused and his colleagues.

21. When the first card detoured, the deceased had not yet been shot. She was shot between Boroko Motors and the City Hall when the police vehicle was in pursuit. The only person who would have known this was the mother who confirmed in her evidence that the deceased was shot between Boroko Motors and City Hall.

22. There is also no evidence of anyone else discharging a bushmaster rifle at the relevant time. The only person that discharged a bushmaster rifle at the relevant time was the accused. He did not deny this. He said he discharged the bushmaster rifle in the air but there is overwhelming credible evidence, circumstantial and eye witness evidence, that he fired at the Camry.”

6. In essence the primary judge found that the appellant caused the death of the deceased as the appellant was the only person who fired a bushman rifle at the Camry, that there was no evidence of any other gunshots from anyone else, the deceased was in the Camry and died from blood loss from three bullet wounds and the bullets fired by the appellant caused those wounds.

7. The law in regard to the consideration of circumstantial evidence is stated by Miles J. in The State v. Tom Morris [1981] PNGLR 493 at 495 in which His Honour reproduced the following passage from the High Court of Australia decision in Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104: [1975] HCA 42; 50 ALJR 108 at 117:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen ((1960)[1960] HCA 2; , 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the influence of guilt is the only inference open to reasonable men upon a consideration of all the facts and evidence.’: Peacock v. The Queen at p. 661. These principles are well settled in Australia.”

8. For the primary judge to convict the appellant on the basis that he did, the primary judge should have been satisfied that the circumstances of the case are such as to be inconsistent with any reasonable hypothesis other than the guilt of the appellant.

9. There is evidence from Moses Pain, a Senior Policeman from the Forensic Science Services of the Police Force, a witness for the State, that the bullets that were fired by the appellant were 5.56mm calibre and that there were bullet marks on the Camry consistent with that calibre. There is further evidence that the entry wounds on the deceased were one of 8mm and two of 9mm and that the wounds were caused by one bullet or projectile that entered the boot of the Camry and fragmented. There is evidence that a piece of a brown lead ball was found in the Camry and that this is from a shotgun cartridge and could not have come from a bushmaster rifle.

10. There is evidence from Dr. Seth Fose, a specialist pathologist, a witness for the State, that it would be expected that a bullet wound would be similar to a wound inflicted by a sharp axe blade. The wound would be able to be linked up. There is evidence from Joseph Numbros, a Senior Sergeant Policeman, attached to the National Forensic Science Centre, that the pieces of bullets which were taken from the Camry were fragments that were so small that they were like sand, and that it could not be determined whether they were from a 5.56mm bullet. There is also evidence to the effect that it may reasonably be concluded that the wounds on the deceased, if caused by a bullet which had not fragmented, could not have been caused by a 5.56mm bullet as the wounds were 8 and 9mm and were too large. If however, the wounds were caused by a bullet which fragmented, the fragments from a 5.56mm bullet, being smaller, would not have caused wounds as large and as similar as each other, as those found on the deceased. Further, there was no evidence given on behalf of the State that explained whether and or how a 5.56mm calibre bullet, or fragments of such a bullet, could cause three similar wounds of 8mm and 9mm.

11. It is a reasonable hypothesis on the evidence therefore, that the bullets fired by the appellant did not cause the death of the deceased. Further, there is the unchallenged evidence from the appellant that he and the other persons in the police vehicle heard a couple of gunshots when close to the Hohola market, saw the other two vehicles and pursued them. There is no evidence of firearms being found in the Camry or of shots being fired from the Camry and so it may be concluded, given that gunshots had been heard, that those shots emanated from the other vehicle which had been chasing the Camry.

12. From a consideration of the evidence, we are satisfied that there are discrepancies in the evidence such that the circumstances of the case are consistent with a reasonable hypothesis other than the guilt of the appellant and that this reasonable hypothesis is not a bare possibility of innocence. Further, the scenario which the primary judge accepted, is not the only rational inference which the circumstances of the case enabled the primary judge to draw and in accepting the scenario that he did, we are of the respectful view that the primary judge fell into error.

13. Further, from a perusal of the evidence, we are not satisfied that the primary judge was able to find that the requisite intent for a successful conviction of a crime of wilful murder had been made out by the State beyond reasonable doubt. It is also the case as submitted by the appellant, that the primary judge did not warn himself of the dangers of entering a conviction on circumstantial evidence.

14. As to the submission by the State that pursuant to s. 23(2) Supreme Court Act, that notwithstanding that this Court may be of the opinion that the point raised in this appeal might be decided in favour of the appellant, it may nevertheless dismiss the appeal if it considers that no miscarriage of justice has occurred, and that in this instance no miscarriage of justice has occurred, to our minds, given that we are satisfied that there is reasonable doubt as to whether the bullets fired by the appellant caused the death of the deceased and that there is an alternate explanation as to where the bullets which caused the death of the deceased came from, we are satisfied that a miscarriage of justice has occurred with the conviction of the appellant.

15. For the above reasons, we are satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict of guilty made against the appellant for the reasons given: John Beng v. The State [1977] PNGLR 115.

Orders

16. The Court orders that:

a) This appeal is allowed;

b) The conviction entered on 19^th May 2017 is quashed;

c) The sentence ordered on 21^st July 2017 is quashed;

d) The appellant’s bail money shall be refunded to him.
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Young & Williams Lawyers: Lawyers for the Appellant
Office of the Public Prosecutor: Lawyers for the Respondent