Kapilyo v State [2019] PGSC 58; SC1818 (27 June 2019)

SC1818

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 59 of 2017

DON KAPILYO

V

THE STATE

Waigani: Salika CJ, Berrigan and Miviri, JJ
2019: 25 and 27 June

SUPREME COURT – PRACTICE AND PROCEDURE – Appeal against conviction – failure of defence counsel to make submissions on verdict – failure to demonstrate that the verdict is unsafe or unsatisfactory, or that the conviction entailed a wrong decision on a question of law, or that there was a material irregularity in the trial – appeal refused.

Cases Cited

John Beng v The State [1977] PNGLR 115
Jimmy Ono v The State (2002) SC698
Lati v The State (2015) SC1413

References Cited

Section 23 of the Supreme Court Act
Section 37(4)(e) of the Constitution
Sections 340 and 315(b)(d) of the Criminal Code (Ch. 262) (the Criminal Code).

Counsel

Applicant in Person
Mr P. Kaluwin, Public Prosecutor, for the State

DECISION ON APPEAL

27 June, 2019

1. BY THE COURT: The appellant appeals against a decision of the National Court in which he was convicted following trial of one count of unlawful assault causing bodily harm, and one count of unlawfully causing grievous bodily harm with intent, contrary to Sections 340 and 315(b)(d) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.
   
2. The National Court imposed sentences of 1 and 5 years’ imprisonment, respectively, on count one and two, to be served concurrently. The period spent in custody awaiting trial, 1 month and 3 weeks, was deducted from the time to be served. As below, no challenge is taken with the sentences issued.
   
3. At trial it was alleged that between 8 pm and 9 pm on 9 August 2015 at Morata 2, National Capital District, the appellant and the complainant had an argument about the accused spreading rumours about the complainant sleeping with a married woman. It was alleged that the appellant threw a full bottle of beer at the complainant, which smashed against the back of the complainant’s head causing a cut, before the appellant walked away.
   
4. It was further alleged that between 12 am and 1 am the same night, the complainant went to the appellant’s house to sort out the problem. The appellant refused to respond and in frustration the complainant punched the window, causing a louvre blade to fall to the floor. In response the appellant came out of the house and swung a bush knife at the complainant who raised his right hand in defence, sustaining a deep cut. The complainant ran away but fell unconscious to the ground, whereupon the appellant caught up with him and cut him on the head with the bush knife.
   

Grounds of Appeal

5. The appellant’s notice of appeal contains 5 grounds. Grounds 3(a), 4 and 5 have been abandoned by the Appellant and are dismissed, including his appeal against sentence.
   
6. The remaining grounds may be stated as follows:
   
   • (a) Ground 1: the trial judge erred in fact and law in finding beyond reasonable doubt that the appellant used a bush knife to cause grievous bodily harm to the complainant;
     
   • (b) Ground 2: the trial judge erred in fact and law in relying on the evidence adduced in the trial by the State; and
     
   • (c) Ground 3(b): the trial result was affected by the failure of defence counsel to make oral or written submissions on verdict.
     
7. It is well established in this jurisdiction that to succeed on an appeal against conviction an appellant must by virtue of s. 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 that there was a material irregularity in the trial. In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred. If not, it may dismiss the appeal: Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.
   

Ground 1: Grievous Bodily Harm

8. The appellant submits that the learned trial judge erred in fact and law in finding beyond reasonable doubt that the appellant used a bush knife to cause grievous bodily harm.
   
9. In summary, the appellant argues that the trial judged erred in relying upon the medical report dated 27 April 2016 by Dr Reuben Jack Kitembing of Port Moresby General Hospital, which was made 8 months after the alleged incident. Furthermore, he argues that it was unsafe for the learned trial judge to rely on the complainant’s version of events and that he failed to apply logic and common sense to his reasoning.
   
10. Whilst this ground is focused on the second count on the indictment, it is useful to deal with count one here as well.
    
11. In this trial, as is often the case, there were two principal witnesses, the complainant and the appellant, who provided very different versions of what took place that night. In reaching his decision on verdict, the learned trial judge considered the evidence of the complainant that it was appellant who threw the bottle that cut his head, and that it was the appellant who inflicted the injuries to his hand. He also had regard to the evidence of the appellant, who denied throwing the bottle at the complainant because of his disability and said that the complainant injured his own hand in the course of a scuffle between them.
    
12. In deciding to accept the evidence of the complainant the trial judge had regard to the demeanour of the witnesses and accepted the complainant as a witness of truth. He also had regard to certain admissions made by the appellant in his record of interview, and specifically rejected the appellant’s evidence that he did not make the admissions to police.
    
13. In addition, the learned trial judge considered two medical reports. The State’s medical report was prepared by a qualified doctor and confirmed the presence of multiple knife wounds and abrasions to the head and right hand of the complainant. No objection was taken to the medical report, which was properly admitted. It was open to the trial judge to find that the medical report was consistent with the State’s case against the appellant.
    
14. The trial judge also took into account the medical report relied upon the accused. Whilst accepting, on that basis, that the appellant had some disability, he was, nevertheless, satisfied beyond reasonable doubt on the evidence that the appellant caused the injuries to the complainant’s head and hand.
    
15. Again, it was open to him to do so on the evidence and having regard to the content of the appellant’s medical report, including the fact that it was 15 years old at the time of the trial.
    
16. With respect to count two in particular, the trial judge found that the injury to the complainant’s hand was consistent with his evidence, and inconsistent with the appellant’s evidence that the injury was self-inflicted, which he specifically rejected.
    
17. It is well established in this jurisdiction that the Supreme Court will not readily interfere with the assessment of the evidence and the findings of the trial judge: Jimmy Ono v The State (2002) SC698. We see no reason to do so in this case.
    
18. There was sufficient evidence from which it was open to the learned trial judge to find the appellant guilty of both counts on the evidence. The verdict is safe and satisfactory.
    
19. Ground 1 is dismissed.
    

Ground 2: Reliance only on evidence by the State

20. This ground has been dealt with above. As discussed, the learned trial judge considered the evidence adduced by both the State and the appellant before making his finding of guilt on each of count one and two on the indictment.
    
21. Ground 2 is dismissed.
    

Ground 3(b): Failure of defence counsel to make submissions on verdict

22. The appellant contends that the trial result was affected by the failure of defence counsel to make oral or written submissions on verdict.
    
23. The interests of justice require that criminal proceedings are conducted in an orderly and efficient manner. The orderly and efficient administration of justice must at all times, however, be balanced against the accused’s fundamental right to a fair trial under Section 37 of the Constitution, including, and of particular relevance here, Section 37(4)(e). Whether or not it is fair to require an accused person to proceed with submissions on verdict in the absence of a lawyer will depend upon the circumstances of a particular case.
    
24. In this case the appellant’s lawyer failed to appear on at least one prior occasion because he had not been paid. The learned trial judge adjourned the matter and gave the appellant an opportunity to have his lawyer appear, speak to a lawyer from the Public Solicitor’s Office or make submissions himself. In the absence of his lawyer for at least the second time, the appellant chose to make submissions himself.
    
25. Moreover, as discussed above, the learned trial judge considered in detail both the State and defence cases before reaching his verdict. There was no material irregularity in the trial and no error of law. As above, the verdict is safe and satisfactory.
    
26. Ground 3(b) is dismissed.
    

Conclusion

27. For the above reasons we conclude that in all the circumstances of the case the appellant has failed to demonstrate that the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial. The conviction is safe and satisfactory.
    
28. The appeals are dismissed and the convictions and sentences confirmed.

________________________________________________________________
Appellant in Person
Public Prosecutor: Lawyer for the Respondent