Pakua v Independent State of Papua New Guinea [2020] PGSC 112; SC2024 (30 October 2020)

SC2024

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 27 OF 2019

BETWEEN
AUGUSTINE FREDRICK PAKUA
Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kokopo: Yagi, Makail & Kassman, JJ
2020: 29^th & 30^th October

SUPREME COURT – Appeal against conviction – Convicted of wilful murder – Safeness of conviction – Inconsistencies in State witnesses’ evidence – Identification of – Which account is believable and reliable – Criminal Code – Section 299

Cases Cited:
Papua New Guinea cases

Nil

Overseas cases

Browne v. Dunn (1893) 6 R 67 (HL)

Counsel:

Mr. J. Unua, for Appellant
Mr. P. Kaluwin, for Respondent

JUDGMENT

30^th October 2020

1. BY THE COURT: The appellant was convicted by the National Court sitting at Kimbe on 21^st May 2019 for the crime of wilful murder after he pleaded not guilty to the charge under Section 299 of the Criminal Code. On 18^th June 2019, he was sentenced to life imprisonment. He appeals the decision on conviction and does not appeal the sentence of life imprisonment. Thus, our consideration of the appeal will be confined to the safeness or satisfactoriness of the conviction.

2. The death of the deceased Stanley Luaina is not controversial. It is the identity of the persons who killed him and the intention to kill that are in controversy between the parties.

3. The appellant was accused of being one of the men who attacked and killed the deceased. The others were Tamai Nombri and Wisini Gigmai. They used grass knife, hook knife and spear to cut the deceased. He died from the wounds sustained from the attack.

4. The State called:

(a) Wife of the deceased June Salaniet Stanley.
(b) Grade 12 student Michael Maru.
(c) Grade 8 student Pelington Ani.
(d) Grade 6 student and son of deceased Joshua Stanley and
(e) 16 year old daughter of the deceased Keycie Stanley.

5. In addition, a number of documents were tendered by the State, some of them were:

(a) Statement of Michael Maru (exhibit “S1”).
(b) Statement of Pelington Ani (exhibit “S2”).
(c) Record of Interview of the appellant (exhibit “S5A”).
(d) Affidavit of Doctor Annete Ketalu sworn 4^th April 2017 (exhibit “S6A”).
(e) Post Mortem Report dated 31^st March 2017 (exhibit “S6B”).
(f) Medical Certificate of Death dated 4^th April 2017 (exhibit “S6C”) and
(g) Five photographs of the deceased (exhibits “S7A” to “S7E”).

6. The appellant gave unsworn statement from the dock. It was then a case where the State did not have the opportunity to cross-examine the appellant in relation to the factual matters he revealed in his defence from the dock.

7. In an appeal against conviction, Section 22(1)(a) of the Supreme Court Act confers on the appellant the onus to establish that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed.

8. In the grounds of appeal, we note that the appellant attacked the decision of the trial judge to accept and rely on the evidence of Michael Maru and Pelington Ani to identify him and two accomplices who attacked the deceased. They said that he cut the deceased with a grass knife multiple times. The trial judge erred because these witnesses:

- denied seeing the appellant from a distance of 15 metres but 100 metres.

- denied seeing the appellant from a distance cutting the deceased.

- denied seeing the deceased lying on the ground or being cut.

- denied the contents of their respective statements as they were concocted by the police and that they were forced to sign them.

9. In submissions, the appellant expanded the grounds of appeal to include an attack on the trial judge’s acceptance and reliance on the evidence of the wife of the deceased June Stanley on the ground that while he accepted her claim that he called her by phone while in custody, he did not influence or apply pressure on her to withdraw the charge against him. Secondly, she had a motive to lie to avenge the death of her late husband.

10. Finally, he attacked the decision of the trial judge to accept and rely on the evidence of the children of the deceased Joshua and Kaycie Stanley on the ground that, like their mother, they had a motive to lie to secure a conviction against him to avenge the death of their late father.

11. These is all well and good but at no time were these matters put to the State witnesses during cross-examination to test their recollection and comply with the rule in Browne v. Dunn (1893) 6 R 67 (HL). The inference that was open to the trial judge to accept by this omission by the defence is that the evidence of the State remained intact.

12. As to the appellant’s submission in relation to the inconsistencies in the respective oral evidence and statements of Michael Maru and Pelington Ani (exhibit “S1” and exhibit “S2”) we accept the Public Prosecutor’s submissions that it was open to the trial judge to consider the evidence in totality to arrive at the decision to prefer the evidence of the State witnesses over the appellant. It was also a question of weight to be given to the evidence. Where the State witnesses gave sworn oral evidence and were cross-examined by the defence counsel as opposed to the appellant who gave unsworn statement from the dock, it was open to the trial judge to weigh the evidence of both parties and accept the one that is compelling and reliable.

13. The unsworn statement of the appellant did not add-up. He denied killing the deceased. He said he asked the wife of the deceased June Stanley why she alleged that he killed the deceased and pleaded with her to tell the Court that he did not kill the deceased but she replied that she was scared to do that. She also told him that she did not see who killed the deceased and further, her two children also did not see the person who talked with Cletus their neighbour that day. As we pointed out earlier, what he has stated were never put by defence counsel to the State witnesses especially June Stanley in cross-examination. This is in breach of the rule in Browne v. Dunn (supra) and leaves open the inference that the appellant’s account is a recent invention and doubtful.

14. Secondly, he never told the trial judge that as it was a Sunday, he attended church on that day. Despite this, during cross-examination of Joshua Stanley, his counsel suggested to Joshua that the appellant was attending church at that time which Joshua denied. The suggestion that the appellant went to church at the material time has the potential to remove him from the scene of the crime and brings up the issue of alibi. However, his alibi must be doubted for two reasons: First, he did not give the requisite notice to the State of his alibi in order for the State to respond. Secondly, he did not call his alibi witness(es). Again, his indecisiveness on the reliance of alibi leaves open the inference that his account of not be present at the scene of the crime is a recent invention and doubtful.

15. Next, we note that in the final submissions on verdict, defence counsel did not press the point on the inconsistencies in the evidence of Michael Maru and Pelington Ani and the trial judge did not have the benefit of these submissions to assist him in evaluating the evidence of these witnesses. We are of the view that if the inconsistencies were not pointed out to the trial judge and led to the trial judge accepting the evidence of these witnesses, it alone does not constitute an error in the trial judge’s assessment of the evidence such that the conviction is unsafe or unsatisfactory.

16. Another matter to note is the Record of Interview (ROI) of the appellant (exhibit S5A”). Although it was not pressed by the State, we make this observation. Answers given to the police at an interview which are consistent with the evidence of an accused and witnesses has the added advantage of demonstrating to the Court that the accused is genuine and puts the prosecution case in doubt where the State’s evidence is not strong or compelling for example, where State witnesses’ evidence is inconsistent and contradictory. Equally, while an accused may exercise the right to remain silent at a police interview as conferred by the Constitution, the benefit of revealing his side of the story in his defence will not be available.

17. In this case, we note that the appellant did not answer questions at the interview with the police. This is the first real opportunity for him to come out clear and tell the truth so that it gives credence to his story from the dock. Consequently, his recount of the events or his side of the story was missing or not disclosed to the police at the interview. It would appear then that the benefit that the appellant would have otherwise given to the trial judge was missing and left the trial judge with no other option but to prefer the evidence of the State witnesses.

18. The State’s case goes beyond identification of the appellant as the assailant. It was a case of recognition. As the claim by the defence that June Stanley and her two children have fabricated the story that the appellant was one of those persons who killed the deceased is doubted, in their evidence, Joshua and Keycie Stanley said that they identified the appellant as the person who talked to Cletus when they sought refuge at his house on that day. They recognised him because they lived in the same locality at Tampa block of West New Britain Province. The appellant held a bush-knife and a spear. They heard him tell Cletus to go and check if the boss man was still breathing and save him but if he was dead, call the police.

19. The appellant does not deny being from the same locality as these two witnesses and neither does he say he has not seen them nor being seen by them any time prior to the commission of the offence. Further, they identified him by name. Their evidence in relation to recognition is intact.

20. As the trial judge had the benefit of weighing up all the evidence it was open to him to accept and rely on the respective statements of Michael Maru and Pelington Ani to find that they also identified the appellant as one of the men who attacked the deceased on that day.

21. As to the issue of intention to kill, the trial judge had the photographs and medical report of the deceased depicting the wounds sustained by the deceased as a result of the attack. The trial judge summed it up neatly in this way:

“The five photographs exhibits 7(A) to 7(E) show this extreme and gruesome sight after the assailants had completed what they set out to do upon the deceased. In particular exhibits 7(D) and 7(E) show the cuts crisscrossing the entire back of the deceased. The medical certificate of death exhibit S6(C) by Doctor Ketalu set the cause of death as right pneumothorax right penetrating chest injury.

By this evidence Stanley Luaina died an unnatural death. This establishes that whoever inflicted the injuries upon him intended that he should die.”

22. Having established the appellant as one of the men who attacked the deceased, by this evidence, it was open to the trial judge to conclude that the appellant intended to cause the death of the deceased.

23. Taking into account the totality of the evidence and the reasons given by the trial judge to prefer the evidence of the State witnesses over the unsworn statement of the appellant, we are not satisfied that the appellant has demonstrated that the conviction is either unsafe or unsatisfactory. The appeal against conviction is dismissed.

Order

24. The orders of the Court are:

1. The appeal against conviction is dismissed.

2. The conviction and sentence are confirmed.

________________________________________________________________
Leslie Mamu, Public Solicitor: Lawyers for the Appellant
Pondoros Kaluwin, Public Prosecutor: Lawyers for the State