John v State [2021] PGSC 92; SC2165 (19 October 2021)

SC2165

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 27 OF 2015

BETWEEN:
KEVIN JOHN
Appellant

AND:
THE STATE
Respondent

Waigani: Gavara-Nanu J & Manuhu J.
2020: 21^st July
2021: 18^th October

APPEAL – Particular Offence – Murder –Law on identification evidence – Law on circumstantial evidence.

Cases Cited:

Paulus Pawa v The State (1981) PNGLR 498
The State v Tom Morris (1981) PNGLR 493
Mathias Peter Joseph Evertz v The State (1979) SC 154
John Beng v The State [1977] PNGLR 115

Counsel:

Appellant, In person
C. Sambua, for the Respondent

19^th October, 2021

1. GAVARA-NANU, J & MANUHU, J.: Following the death of the third member of the Court, the requirements of s. 3 of the Supreme Court Act, Chapter No. 37 were put to the parties. It was agreed by the parties that the remaining members of the Court can decide on the appeal.
   
2. The decision of the Court is unanimous. Following a wilful murder trial, the appellant was convicted for murder on 29^th November 2013 and sentenced to 25 years with hard labour on 26 May 2015. He filed his appeal on 1^st June 2015. The State conceded that it is “an ordinary appeal and not a review as the appellant has filed his appeal within the 40-day time limit required.” We shall proceed accordingly.
   
3. The appellant appeared in person. In his appeal against conviction, he pleaded that there was insufficient evidence to support the conviction; the trial judge erred in fact and law in finding that he was positively identified; and the trial judge erred in fact and law in that he misapplied the rules and principles on circumstantial evidence.
   
4. We have heard submissions from the appellant and Mr. Sambua, for the Respondent, who opposed the appeal. The appellant submitted that there was no evidence that he killed the deceased and that the killer was still at large. It was submitted by Mr. Sambua that the trial judge properly considered the evidence and properly applied the relevant principles relating to identification and circumstantial evidence.
   
5. The appellant was indicted for wilful murder together with Augustine Arope and Wilson Simon. It was alleged that between 2.00am and 3.00am on 3^rd July 2011, the deceased, a 35-year old man from Kagua in the Southern Highlands Province, was walking home at Bundi Camp Settlement after closing his small tucker shop near Kilakila Market when he was attacked. The distance between the tucker shop and Bundi Camp was estimated to be two kilometres. The deceased was accompanied by his nephew, Rodney Ria, who helped him throughout that night serving customers.
   
6. The State alleged that the appellant, also known as Big Boy, was among those customers that were served by the deceased and his nephew. They had visited the store at around 10.00pm to buy beer. They returned the second time at around 2.00am and bought some more beer. They were also given two extra bottles of beer free of charge by the deceased as he knew them.
   
7. While on their way home, the deceased and Rodney met the three accused among the same boys who had bought beer on two separate occasions that night. Rodney Ria said goodnight and someone amongst that group returned the greeting. As they continued walking, the appellant followed them and demanded that the deceased put away the bush knife he was holding. At the same time, someone hit Rodney across the face with a piece of metal. Rodney Ria ducked under the second blow and ran off.
   
8. As Rodney Ria was running, he saw the appellant and friends set upon the deceased. A Felix Ousi struggled to pull the knife from the deceased and, in the process, received a cut on his hand. The men finally seized the bush knife and chased the deceased to Anton Wembi’s premises and into the nearby banana patch where they inflicted several very serious and multiple cuts and stabs to his head and other parts of the body.
   
9. Upon hearing cries for help, Anton Wembi and his wife walked to the banana garden and saw the deceased who was already injured. Other community leaders arrived and attempted to remove the knife from Felix Ousi. Felix Ousi, the appellant and the group left the banana garden and later demanded that Ialibu people should compensate Felix Ousi for the deep cut on his hand.
   
10. The deceased died as a result of multiple injuries inflicted by the appellant and the group.
    
11. It was alleged that the appellant and Felix Ousi intended to cause the death of the deceased when they used a dangerous weapon to repeatedly cut and stab him on the most vulnerable part of his body, namely the head. The State invoked section 7 of the Criminal Code Act.
    
12. The main issue at the trial was identification. The law on identification evidence is as stated in the case of John Beng v The State [1977] PNGLR 115, where it was held:
    

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

13. There was no direct evidence against the appellant. The trial judge had to make findings of fact on the basis of circumstantial evidence. In that regard, the law on circumstantial evidence is well settled in this jurisdiction in the cases of Paulus Pawa v The State (1981) PNGLR 498 and The State v Tom Morris (1981) PNGLR 493, which, for the benefit of the appellant, are simplified below:

(a) When the case against an accused person rests substantially upon circumstantial evidence the judge 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.

(b) To enable a judge 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.

(c) However, an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a judge from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.

14. In this case, Rodney Ria, the nephew who accompanied the deceased, gave evidence that he was at the tucker shop when boys from Bundi Camp went to buy beer. He said he only knew two names which were John Duba and Felix Ousi. Then he said he saw five boys going to the tucker shop to buy beer the second time. When asked, he pointed to Augustine Arope and Wilson Simon, who were tried together with the appellant. The witness also pointed to the appellant.
    
15. The second witness, Manea Seni, gave evidence that he was drunk on the night in question and went to sleep at 10.00pm. When he woke up at 2.00am, his wife was not there so he went to look for her. On the way, he got into a fight with a group of boys, namely Augustine, Felix and Big Boy. Augustine was the one who threw punches at him and he blacked out for a couple of minutes. He went to his house when he recovered.
    
16. Lucas Mara, the third witness, was sleeping but was woken up by his wife who told him that Anton was assaulted so he went to Anton’s house. There he saw three men standing. They were Felix, Kundu and Big Boy. Felix had a cut on his hand and was rolling on the floor demanding compensation for his injury. Others were supporting him.
    
17. The fourth witness, Justin Manda, gave evidence that he saw Simon Kundu, Augustine and Felix. They were drunk and, as he was suspicious that they would cause trouble, he followed them. Soon after, the deceased called out. He saw Felix holding onto one bush knife. Simon was holding a piece of metal.
    
18. A little later, Augustine, Felix and Simon told him that they had a fight. Then a Richard came down and told them that a person by the name of Steven had died and that they were in big trouble. He advised that the matter would be sorted out in the morning.
    
19. Margaret Anton, the fifth witness, gave evidence that she was asleep but there were shouts from outside the house so she woke up, came out of the house and stood at the doorway. She saw the deceased being chased towards her direction and calling for her husband. The deceased stepped into their premises when one of the chasers pulled the bush knife off him and cut his leg. She was afraid so she shut the door and woke her husband up and they both went outside. They saw the deceased being chased to the back of their house and to a Tari man’s house where he was cut. In the morning, Felix Ousi approached them and threatened to cut her and her husband. She later stated that those who were with Felix Ousi chasing the deceased included the appellant.

20. Husband Anton Wembi also gave evidence for the prosecution. He said he was woken up by his wife, Margaret Anton, in the early hours. He stood at the door asking his wife as to what was going on. Then he and his wife went to the back of their house where they met the boys. Those boys were Augustine, Felix, John Big Boy and Simon Kundu. The witness pointed to the appellant as John Big Boy.

21. He ushered them to where the light was in front of the snooker table and enquired what they were doing. Augustine got a bush knife and swung at him. Then they walked away and then Anton went to see Manus Ope. They used a mobile phone light and proceeded to the banana patch where they discovered the body of the deceased. They called out and people gathered. At around 8.00am or 9.00am, the CID arrived at the scene.

22. On the evidence, there was no dispute that the appellant was also known as Big Boy. Witness Rodney Ria pointed to the appellant in court as Big Boy. There was no dispute that Felix Ousi was the leader of the group and the aggressor. Rodney Ria said he saw the appellant in the company of Felix Ousi at all material times. Manea Seni also met Felix Ousi, Augustine and (Big Boy) the appellant in the early hours of the day in question.

23. Witness Lucas Mara was woken up by his wife because of a commotion outside. When he went to investigate, he saw Big Boy (the appellant) with Felix Ousi, who was demanding compensation for a cut on his hand. Witness Margaret Anton gave evidence that the appellant was one of those who chased the deceased. Witness Anton Wembi also saw the appellant with Felix Ousi at the relevant time. The fourth and fifth State witnesses were the only witnesses who did not name the appellant in their evidence.

24. Notwithstanding the grounds of appeal, which also raised issues of law, it is apparent that the appellant mostly disputes the trial judge’s findings of fact. He seemed aggrieved that Felix Ousi, the aggressor and leader of the group, was not charged and was still at large. However, it has to be understood that where an appeal ground relates to a trial judge’s findings of fact, in the absence of a clear error or a clear misapprehension of the evidence, this Court would be reluctant to disturb the trial judge’s findings. This was explained by Kearney J in the case of Mathias Peter Joseph Evertz v The State (1979) SC154, thus:

“It is inherent in the nature of the trial process that this Court must place great weight upon the views of the trial judge on issues which turn upon the credibility of the witnesses who testified before him, unless the appellant shows that the rejection of his own testimony on those issues flows from some fundamental misconception of the evidence as a whole, or from a failure to take it all properly into account.”

25. In this case, Felix Ousi stood out as the leader of the group of boys who were drinking, making a lot of noise and confronting other residents. The witnesses saw the appellant with Felix Ousi and others at all material times. The appellant was seen with Felix Ousi chasing the deceased to the banana garden where he was found dead. Accordingly, it was open to the trial judge to make a finding against him pursuant to section 7 of the Criminal Code. There was sufficient lighting under which all these happenings took place, as described by the witnesses. The witnesses and the appellant were not strangers. The appellant was thus positively identified at all material times and immediately before the killing took place when he was seen amongst the boys chasing the deceased to the banana patch.

26. We are satisfied therefore that the trial judge did not commit any error in his analysis of the evidence and in his application of the principles on identification evidence. We are similarly satisfied that the trial judge did not commit any error in his analysis of the evidence and in his application of the principles on circumstantial evidence. For these reasons, we find that the appeal lacks merit and should be dismissed. The appellant’s conviction and sentence are confirmed.

Orders accordingly.
_________________________________________
Lawyers for the Appellant : In Person.
Public Prosecutor: Lawyers for the Respondent