Naepe v State [2020] PGSC 144; SC2072 (25 August 2020)

SC2072

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 39 OF 2016

JACKSON NAEPE
Appellant

V

THE STATE
Respondent

Waigani: Batari J, Dingake J, Miviri J
2019: 26^th February
2020: 25^th August

CRIMINAL LAW – identification evidence – alleged inconsistencies in evidence of State witnesses – alibi evidence – whether appeal against conviction on manslaughter ought to be upheld.

CRIMINAL LAW – Practice & Procedure – medical evidence – tender of autopsy report through doctor who did not do post-mortem – whether satisfactory – contents of report – whether hearsay.

The trial court convicted the appellant of manslaughter after finding, he assaulted and caused the death of the deceased. He appealed his conviction, relying on errors in: rejecting the alibi evidence; upholding the identification evidence and relying on tainted medical evidence. The appellant also appealed his sentence.

Held:

(1) A doctor through whom a medical report is tendered need not be the doctor who performed the autopsy and compiled the post-mortem records provided the doctor has some knowledge of the autopsy or is the custodian of the records or can give expert opinion on the findings of the autopsy. [11]

(2) Where the trustworthiness of the medical report is called into question, it is legitimate and often desirable and not uncommon for a party to test the opinion of an expert witness by probing cross-examination as to the basis for the formation of that opinion and to adduce expert opinion from a medical practitioner regarding the State’s medical evidence. [19]

(3) Where in a criminal trial, the identification of the accused person is the central issue, it is the duty of the trial judge to be; (i) very cautious in concluding that identification has been established, and (ii) that the identifying witness is not only honest in his evidence but also accurate [36]

(4) The undoubted power of this Court to reverse the trial judge, where the matter turns on the issue of credibility and the judge had the advantage of seeing the witnesses and makes a deliberate decision on which side to believe, should only be exercised where the trial Judge was wrong on his conclusions of facts or misapprehended the facts. [38]

(5) There is no requirement in law that the relevant facts be established with complete scientific accuracy in order to meet the standard of proof beyond reasonable doubt. [45]

Cases Cited:
Papua New Guinea Cases

Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853
David v State [2006] PGSC 22; SC881
Denden Tom v The State (2008) SC 967
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705,
John Beng v The State [1977] PNGLR 115
John Kaina v The State [1990] PNGLR 292
Lawrence Hindemba v The State (1998) SC 593
Manu Kovi v The State (2005) SC 789
Nebare Dege v The State (2009) SC1308
Pung v The Independent State of Papua New Guinea (2016) SC 1510
Rex Lialu v The State [1990] PNGLR 4
SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC judgment of 30th April 2009)
State v Parker (2017) N6803
State v Bade (2011) N4460
The State v. Leo Nai Kua, (1995) N1331
Thres Kumbamong v The State (2008) SC1017
William Norris v The State [1979] PNGLR 605

Overseas Cases

Brown v Dunn (1893) 6 R 67
R v. Summers [1990] 1 Qd R 92

APPEAL

This was an appeal against conviction and sentence for manslaughter.

Counsel

L. Tangua, for the appellant
J. W. McPhee, for the respondent

25^th August, 2020

1. BY THE COURT: This is an appeal against conviction and sentence by the National Court at Goroka where his Honour Neill J convicted the appellant of manslaughter following a trial on murder.
   

Background: The Trial

2. The primary court convicted the appellant, Jackson Naepe for causing the death of one, Simon Taul in an attack at North Goroka, Eastern Highlands Province on the night 28 March 2013. Jackson and an accomplice severely beat up Simon resulting in internal injuries. Simon died three days later, on 31 March 2013.
   
3. For the State, Paul Isol gave eyewitness account of identifying Jackson by recognition. He and another policeman repeatedly assaulted Simon with fists and boots. Both men with similar haircuts were drunk. The next morning, Simon and his relatives confronted Jackson at his premises to mediate compensation. A fight broke, police arrived and detained those involved. Two State witnesses gave similar evidence of the failed mediation. Dr Max Manape testified his opinion on the Autopsy Report compiled by Dr Eri Ebos. Other evidence included: post-mortem report, record of interview.
   
4. The appellant testified on his alibi defence that on 28 March 2013, he returned to his rented home about 6.00 pm. He did not leave the premises again until the next morning when a noisy group of people confronted him. They attacked him, police arrived and detained those involved. He called two witnesses to support his alibi.
   
5. The trial judge found the alibi evidence, unconvincing. His Honour held, the identification evidence was reliable and that the assault on the deceased was as described by Paul Isol. The court also accepted the medical evidence of death due to damage to the lungs was consistent with the eyewitness’ accounts of injury sustained by the deceased to the rib/chest area. Jackson was acquitted of murder but convicted on the alternative verdict of manslaughter.
   

Grounds of Appeal

6. The five grounds of appeal may be fairly paraphrased as follows:
   
   1. The trial judge wrongly admitted into evidence, the Autopsy Report through a doctor who did not conduct the autopsy and hence, erroneously concluded death resulted from lungs injury.
      
   2. The trial judge wrongly convicted the appellant on the uncorroborated, unreliable and illogical testimony of Paul Isol.
      
   100. The trial judge erred in dismissing the appellant’s strong alibi defence which casted reasonable doubt to the State’s case.
        
   4. The conviction was against the totality of the evidence.
      
   5. The term of 16 years imprisonment is manifestly excessive.
      

Applicable principles on appeal against conviction

7. The test in a criminal appeal against conviction is whether, “the verdict should be set aside on the ground that under all the circumstances of the case, it is unsafe or unsatisfactory,” per s. 23 (1)(a) of the Supreme Court Act. The appeal will also succeed where, under s. 23 (1) (b), a wrong decision is made on a point of law or under s. 23 (1) (c), in the case of a material irregularity in the course of the trial: John Beng v The State [1977] PNGLR 115.
   
8. Before an appeal is allowed, the Court must be satisfied the evidence or conduct of the trial raises a reasonable doubt, not a mere “lurking doubt” as to the safeness or satisfactoriness of the verdict: Nebare Dege v The State (2009) SC1308; John Beng v The State.
   

Ground 4.1 – Error in admission of the medical evidence

9. The appellant’s case is that the medical report was tainted because; (i) Dr. Max Manape did not conduct the postmortem; (ii) his evidence was hearsay; (iii) the autopsy report was a bogus; (iv) the admission of medical report was in absence of the accompanying affidavit contrary to the Evidence Act.
   
10. The trial judge dealt with the admission of the report into evidence at pages 187 to 191. His Honour stated at p. 188:

“Now the defence objected to the autopsy report being tendered because they said that the autopsy report contained hearsay. The reason they say that is that the doctor who did the post mortem examination, a Dr. Ebos was not call. There it is he did not come to court. But the doctor, Max Manape counter-signed the autopsy report so there are two signatures on it. And in that situation, Dr. Manape was able to identify the report. So, then we had to look at whether what was said in the autopsy report should be given any weight should be believed.”

(i) Whether Dr Manape was a competent witness.

11. A medical report is admissible evidence under s. 37 of the Evidence Act, as a record of scientific examination, or as a business record under s. 61 through the author of the public document or through a second person having the custodian of the record. As the learned authors of Carter’s Criminal Law of Queensland Tenth Edition, relevantly stated at p. 620:
    

“In modern times it is no longer always possible for an official charged with recording matters of public import in a document for public use to have personal knowledge of their accuracy. It is sufficient if the function originally performed by one man has been fulfilled by two different officials, the first having knowledge of the facts and being under a statutory duty to record that knowledge and forward it to the second who in his turn is under a duty to preserve the document for public inspection”.

12. It has been accepted practice in this jurisdiction, a medical report can be tendered through a person having some knowledge of the matters to which the writing relates or the circumstances relating to its preparations, or a person who can testify as an expert witness on the contents of the medical report.
    
13. In, State v Bade (2011) N4460, a medical report was tendered through the supervising doctor under s. 61 of the Evidence Act. In, The State v Leo Kua (1995) N1331, the doctor who conducted the medical examination was no longer available to give evidence.
    
14. In this case, Dr Manape possessed two important qualities the trial judge was satisfied with. First, he co-signed the autopsy report as the Director of Medical Services at Goroka General Hospital. It is highly probable, his duty included supervision, production and preservation of medical records as public documents. Second, the subject matter the doctor was called to give evidence on was within his area of expertise. He was also skilled through study and has vast experience in that area. These attributes qualified Dr Manape as the proper person through whom the medical report can be tendered and to testify his expert opinion on the forensic findings on the cause of death.

15. The view that a medical report can only be admitted through the medical practitioner who performed the autopsy is unfounded and will yield an untenable result. We accept the submissions by Mr McPhee of counsel for the State that if the evidence of a medical practitioner can only be admissible if that person did the medical examination, this will mean any such evidence led by the State would be irreproachable and no contrary medical opinion would be admissible.
    
16. Such proposition has no legislative basis, it will yield an unjust result and lead to grave miscarriage of justice. It would create significant unfairness and prejudice to an accused person, for e.g. in a situation where an autopsy was conducted using poor methodology.
    
17. The appellant has not particularized and shown where the trial judge erred in allowing Dr Manape to give evidence.
    

(ii) Whether the autopsy report is hearsay

18. The appellant contends that the trial judge was unduly influenced by the hearsay evidence on the contents of the autopsy report. The trial judge dealt with that issue at pages 222, Appeal Book as follows:
    

“Plainly the information given by the three persons listed under “Witness” does not accord with the evidence of the eyewitness or other prosecution witnesses. It points to the problem of hearsay when persons, who were not witnesses at all, pass on scraps of incorrect details of an incident which they did not see and do so 10 days later.

The defence suggests that as a result, the incorrect information of these persons who are categorised as witnesses but are not witnesses in any legal or real sense, made the whole Autopsy Report to have no merit and should be excluded from evidence. The Court rejects that suggestion. The statement of a person described as witness in an Autopsy Report is (in part) to assist the person who performs an autopsy to focus on what to look for. What the doctor who performed the autopsy details are his observations and findings as to cause of death. These findings do not rely on the hearsay of “witness” listed in the preliminary part of the Report.” (underlying added)

19. The trial judge went on to correctly hold, the issues of hearsay and reliability of the medical report are questions of weight. They do not go to the question of admissibility of evidence.
    
20. It is trite, where the trustworthiness of the medical report is called into question, it is legitimate and often desirable and not uncommon for a party to test the opinion of an expert witness by probing cross-examination as to the basis for the formation of that opinion. The defence is also at liberty to adduce expert opinion from a medical practitioner regarding the State’s medical evidence. See, Pung v The Independent State of Papua New Guinea (2016) SC 1510.
    
21. In this case, the defence did not attempt any such searching cross-examination to test the opinion of the expert witness. Nor did the defence adduce contradictory evidence from a medical practitioner as in, State v Parker (2017) N6803, a case relied on by the appellant.
    
22. The appellant has not shown where the trial judge erred in resolving the hearsay evidence.
    

(iii) Whether the medical report is bogus

23. The appellant contends, the trial court denied him the opportunity to cross-examine Dr Ebos on the authenticity of the autopsy report which said nothing about burn scars at the back of the deceased.
    
24. The trial judge dismissed the bogus claim at page 189 of the Appeal Book as follows:

“As well as saying that is hearsay, the defence says that the autopsy report was bogus. Well, it is one thing to act on instructions and assume this can be substantiated by defence witnesses’ evidence but when there is no contradictory medical evidence called, this attack on the professional integrity of Doctor Ebos is a wrong tactic.”

25. The answer to the appellant’s contentions is simple. Any charring on the body of the deceased and any inconsistency in the evidence is not material to the crucial issue of cause of death. Too, any burn marks would have been compromised by the decaying process. The autopsy was conducted 10 days after death. This is common sense.
    
26. The bogus claim is misconceived. It is dismissed.
    

(iv) Medical Report without accompanying affidavit

27. During submissions, Mr Tangua conceded the procedural correctness of tendering the autopsy report through another doctor. However, the medical report was not accompanied by the affidavit of the medical practitioner who conducted the postmortem pursuant to sections 37 and 61 of the Evidence Act.
    
28. The appellant’s contentions are without proper foundation before this Court. The absence of affidavit accompanying the autopsy report was not raised in the court below. It is also not raised as a ground of appeal, nor has the appellant amended the appeal grounds or sought leave to argue the point. The appellant is precluded by settled principles of law from raising the issue of affidavit before this Court.
    
29. In Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 (Bougainville Copper Limited case), the Supreme Court said:

“...an appeal lies to the Supreme Court to examine and where warranted, correct an alleged error of a trial judge and not the failures of parties to raise issues, factual or legal, they should have first raised in the Court below.” (underlining added)

30. In a criminal appeal, the Supreme Court in, Denden Tom v The State (2008) SC 967 affirmed the law is very clear that, an appellant cannot raise an issue on appeal for the first time without first raising the issue in the Court below.

31. In this case, the appellant had the opportunity but, failed to argue issue of affidavit in the court below. He also failed to particularize it as a ground of appeal. This is not a court of ambush. Such tactic yields procedural unfairness against the opposing party and the Court is denied the opportunity to be aware of the issues before it for determination. It is also unfair to the trial judge to criticise him over an act or omission that was never put before him in the court below.
    
32. We are satisfied the trial judge did not err in accepting the medical evidence and relying on the medical findings on the cause of death. The first ground of appeal is misconceived. It is dismissed.
    

Ground 4.2: Unreliable testimony of principal witness, Paul Isol

33. It is apparent the whole trial evolved around two critical issues, namely; (i) identification; (ii) cause of death.
    
34. The appellant contends the conviction was against the weight of the evidence due to discrepancies in the evidence of Paul Isol and the medical report. The inconsistencies sufficiently tainted the honesty and reliability of Paul Isol, to raise doubts.
    
35. Where the credibility of a witness is raised on appeal, the caution in John Kaina v The State [1990] PNGLR 292 pertinently stated:
    

“Whilst it is quite clear that an appellate court can make up its own mind on the evidence it must still be satisfied that the trial judge has erred in his analysis or assessment of the evidence. And an appeal court must never forget the obvious; that where the judge at first instance has had the opportunity of seeing the witnesses, where it turns on the matter of credibility, where they have been cross-examined and where he has deliberately come to a conclusion as to which side has given the correct version, it is very difficult to induce a court of appeal to differ from the decision of the judge at the first instance.

As Barwick CJ said in Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122 at 126:

‘The case, in my opinion, is another instance of the tendency of appeal courts to exercise their undoubted power to reverse a primary judge merely because they hold a view of the facts different from the view he has taken, a view not unreasonable in the circumstances of the case. The appellate court should restrain its use of its power to those cases in which it can confidently be said that the primary judge was wrong in his conclusions of fact.’

We as a court of appeal should be circumspect in interfering with judgments of trial judges where experience is almost invaluable. The transcript is a poor substitute for presiding throughout a trial.” (Underlying added)

36. The question of credibility of a witness such as in this case, hinged on the honesty and reliability of his testimony and the consistency of his evidence with the other witnesses and proved facts on the issue of identification and cause of death.

Identification evidence – reliability of principal witness.

37. It is settled, where in a criminal trial, the identification of the accused person is the central issue, and where identification is made by a person who is either a stranger to or a casual acquittance of the accused person, it is the duty of the trial judge to warn himself or herself to treat the evidence of identification with care specifically –
    
    1. to be very cautious in concluding that identification has been established, and
    2. to be satisfied that the identifying witness is not only honest in his evidence but also accurate.
       
38. In this case, identification was by recognition in the night under security lightings. This was crucial to the State’s case. The appellant’s advocate did not seriously cross-examine Paul Isol on his reliability and honesty regarding the quality of his identification evidence. At p 218 of the Appeal Book, the trial judge concluded:
    

“The eyewitness evidence of Paul Isol was clear. The witness presented as honest and reliable. His evidence was given in a strong voice without equivocation.”

39. The trial judge’s assessment of the credibility of the witnesses in their oral stories before him was the defining advantage this Court does not have. The undoubted power of this Court to reverse the trial judge, where the matter turns on the issue of credibility and the trial judge had the advantage of seeing the witnesses examined and cross-examined and the trial judge makes a deliberate decision on which side to believe, should not readily be exercised unless it can confidently be held the trial judge was wrong in his conclusions of facts or he misapprehended the facts: John Kaina v The State (supra).
    
40. From the whole of the evidence, we cannot detect any glaring error to confidently conclude the trial judge was wrong in his conclusions of facts or he misapprehended the facts on the issue of identification.
    
41. The appellant also submitted, the trial judge failed to consider Parkinson’s disease as the underlying cause of injuries and death.
    
42. There is no evidence to support that contention. The defence half-heartedly established, it was possible for a person with Parkinson’s disease to injure himself in a fall and left it at that distinctively general level. That line of cross-examination was not pursued under the rule in, Brown v Dunn (1893) 6 R 67. Defence did not put forward a theoretical defence case, that the injury causing death might have been caused by a fall due to the underlying Parkinson’s disease and call evidence to support his proposition.
    
43. In the end, the half-hearted attempt by the defence to suggest that the deceased’s injuries were due to his medical condition was rejected by the medical expert witness, Dr Manape.
    
44. It is apparent, Mr Tangua in advancing the appellant’s case, had nick-picked every conceivable and minute discrepancy from the face of the records. That approach has the potential to mislead the State and this Court on the core critical issues before the primary court. This is a classic case of an appellant laboring on peripheral issues, time, effort and resource are best saved for the more critical issues on trial.
    
45. The rule of the law that guilt must be proved beyond a reasonable doubt does not require that the relevant facts be established with complete scientific accuracy: R v Summers [1990] 1 Qd R 92. And there is no rule that a trial judge must reject all of a witness’s evidence because he finds some of it inconsistent. A judge is free to accept some evidence from a witness and reject other parts of the evidence, even if it relates to closely linked events: SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC Judgment).
    
46. The appellant has not shown where the trial judge fell into error in the treatment of the identification evidence. He has not shown where evidence is lacking in weight as regards the honesty and reliability of witness or where the judge misapprehended the facts or misapplied the law. The appellant’s knit-picking submissions have no or little bearing against the totality of the evidence. This ground is dismissed.
    

Ground 4.3 – Alibi Defence.

47. The appellant submits, he had raised a strong alibi against the State’s case and that the trial judge gave no reason in dismissing his alibi.
    
48. The primary judge dealt with the alibi defence at pages 225 to 227 of the Appeal Book. His Honour concluded at p. 227:

“The evidence of the State’s eyewitness Paul Isol is compelling. The Court finds that the evidence, as to the assault on the deceased that evening/morning of 28/29 March 2013, by the accused is indeed as described by Paul Isol. The medical evidence of death due to damage to the lungs as a result to the external rib/chest area is consistent with the eyewitness and other prosecution witnesses’ evidence of injury sustained by the deceased. The attempt by the defence to suggest that the deceased’s injuries were due to his medical condition was rejected by the medical expert witness.

The Court does not believe the alibi evidence of the accused”.

49. The appellant’s contention that the trial judge gave no reason for dismissing his alibi defence is clearly misconceived.
    
50. We are satisfied, the trial judge did not misapprehend the facts or misread the law in dismissing the alibi. The appellant has also failed to show where the trial judge erred in his findings of whelming evidence on the presence of the appellant at the scene and his active participation in assaulting the deceased. This ground is dismissed.
    

Ground 4.4: whether the conviction is against the evidence.

51. This ground is general and couched in a form of submissions best articulated before the trial court. It offends against the dictates of s. 22 of the Supreme Court Act and O. 7 rr. 9 & 10 of the Supreme Court Rules 2012 for lacking in sufficient clarity.
    
52. Ground 4 is misconceived. It is dismissed.
    

Sentence appeal

53. The relevant principles governing appeals against sentence are succinctly stated by Kearney, J in, William Norris v The State [1979] PNGLR 605 at pp 612 to 613. An appellate court will not disturb the discretionary power exercised by a trial court in sentencing unless the appellant can show an error in the sentencing process. Such error may be identifiable such as a mistake regarding facts or application of the law; error in taking into account matters or omitting matters; and not giving proper weight to matters. If no identifiable error can be shown, the sentence may be set aside if the sentence is clearly out of reasonable proportion to the circumstances of the offence.

54. In this appeal, the grounds are not particular on whether the trial judge committed an identifiable error in the sentencing process. Mr. Tangua submitted generally; the sentence is manifestly excessive under the Manu Kovi v The State (2005) SC 789 principles.
    
55. It is trite that the principles in Manu Kovi v The State (supra) do not remove or limit the wide discretion vested in the sentencing authority to fix a sentence which is just and appropriate in the circumstances of each case and the accused under s. 19 of the Criminal Code. See, Thres Kumbamong v The State (2008) SC1017.
    
56. In sentencing a manslaughter case, what the Supreme Court stated in, Rex Lialu v The State [1990] PNGLR 487 is applicable:
    

“.... a sentencing court must have careful regard to the circumstances of the death and the way in which death was actually caused.”

57. One will also bear in mind, that although manslaughter killing falls into the most serious category of crimes of violence, manslaughter is aptly described as accidental or unintentional killings. The sentencing range would therefore be lower than those prescribed for murder and willful murder killings as set out in, Manu Kovi v The State (supra).
    
58. In this case, the trial judge cited five aggravating factors namely, the appellant being a policeman, use of heavy police boots akin to use of a weapon, alcohol related offence, underlying disability of victim, unexplained assault and unremorseful conduct. With respect, these factors seem to have weighed heavily on his Honour’s mind.
    
59. The term of 16 years appears to have been imposed without careful or little regard to the circumstances of the death and the way in which death was actually caused.
    
60. Accepting that the assault leading to death involved considerable violence, the killing was not the worst of its kind. The victim did not die at the scene to meet such level of seriousness as being literally beaten to death. The victim survived the assault for three days, indicating the less serious nature of the assault and the possibility of death being averted by urgent medical intervention. Furthermore, the killing was not occasioned by such weapon as, a knife, axe, iron, timber or firearm.
    
61. From the personal circumstance of the appellant, the trial judge appears to have attached little or no real value to the appellant’s generally good background with no previous conviction. There are also added indirect effects of conviction and sentence the trial judge with respect, have missed. For instance, the appellant will face indirect personal hardships like loss of employment and entitlements over and above the sentence imposed. The appellant will also, no doubt, experience problems not encountered by the majority of other prisoners because of his background as a policeman.
    
62. With respect, the type of killing in this case will attract a term of imprisonment within the wider range of 10 to 16 years. The seriousness of the attack on a disabled person by drunken policemen with repeated kicks with boots falls into the upper end of the scale. Allowing for the mitigating factors, a term of 14 years would be appropriate.
    

Conclusion

63. The appellant has not demonstrated, the appeal should be allowed and the verdict be set aside because it is unsafe and unsatisfactory in all the circumstances of the case; or because the trial judge made a wrong decision on a question of law; or there was material irregularity in the course of the trial. We are inclined to uphold the primary court’s findings on the evidence of identification and causation. The evidence is overwhelmingly against the appellant. We propose on that basis to dismiss the appeal against verdict and conviction.
    
64. On sentence, we are satisfied the sentence is disproportionate and manifestly excessive in all the circumstances of the case. On an appeal against sentence, the Supreme Court may use its power under s. 23 of the Supreme Court Act either to decrease or increase sentence: Lawrence Hindemba v The State (1998) SC 593. We propose to set aside and substitute the sentence with a lesser term.
    

Orders of the Court

1. The appeal against verdict and conviction is dismissed and the conviction is affirmed.
   
2. The appeal against sentence is upheld and the term of 16 years is set aside and substituted with a term of 14 years.
   

_____________________________________________________________
Tangua Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyers for the State