Po'o v State [2022] PGSC 113; SC2309 (7 November 2022)

SC2309

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NOS 87-90 OF 2018

NAHO PO’O, DAVID TAVIRA TONY,
NOEL SIRIYO TONY & DICK TITI PHILIP
Applicants

V

THE STATE
Respondent

Waigani: Cannings J, Geita J, Kaumi J
2022: 27^th October, 7^th November

CRIMINAL LAW – review of conviction for wilful murder, Criminal Code, s 299(1) and sentence, life imprisonment – joint trial of four applicants – identification evidence – whether trial judge properly applied Criminal Code s 7 in finding each applicant guilty – whether necessary for trial judge to expressly state which provision of s 7 was relied on to convict each accused.

CRIMINAL LAW – sentences – life imprisonment – whether identifiable errors made in sentencing each applicant to life imprisonment – whether sentence of life imprisonment manifestly excessive.

Four applicants applied for review of their conviction after trial on one count of wilful murder and the sentence of life imprisonment. The State’s case that the four applicants were members of an armed group that attacked the deceased, who was in a house in a neighbouring hamlet, and each attacked the deceased with weapons, was upheld by the trial judge. Three eyewitnesses gave evidence for the State. Their evidence was found to be of good quality and safe to be acted on as they each identified the applicants, who they knew and recognised, as being actively involved in the attack and described what each applicant did to the deceased. His Honour rejected the alibis of the applicants. His Honour found that the applicants had acted together for a common purpose and with a common intention to kill the deceased and that they aided and abetted each other in commission of the offence. As to sentence, his Honour found that it was a case warranting the death penalty for each applicant. However, as the State did not press for a death sentence, the only appropriate sentence was life imprisonment. The ground of review of conviction was that the trial judge did not give reasons as to how each applicant was caught by s 7 of the Criminal Code and failed to adequately explain how each applicant aided or abetted in commission of the offence of wilful murder. As to sentence, it was argued that the trial judge erred by failing to take into account the degree of participation of applicants and not taking into account mitigating factors, including the youthful ages of the applicants and that none of them had prior convictions; and further that the sentence was manifestly excessive.

Held:

(1) By stating that the offence of wilful murder had been committed by some persons and finding that the identification evidence of three eyewitnesses was accepted and that each witness’s evidence, which included an explanation of what each applicant had done to the deceased, was of good quality and safe to be acted on, the trial judge adequately explained how each applicant was caught by s 7 of the Criminal Code. It was not necessary for the trial judge to expressly cite s 7 and explain what each applicant had done, as it was clear that his Honour had applied a correct process of reasoning and there was ample evidence to sustain the guilty verdict against each applicant.

(2) The trial judge justifiably regarded this as a case warranting the death penalty and made no identifiable error in sentencing each applicant to life imprisonment; and that sentence was not manifestly excessive.

(3) The application for review of conviction and sentence was entirely dismissed.

Cases Cited:

The following cases are cited in the judgment:

Banaso v The State (2022) SC2302
John Jaminan v The State [1983] PNGLR 318
Manu Kovi v The State (2005) SC789
Paliau v The State (2016) SC1537
R v Sapulo Masuve & 2 Ors (1973) No 732
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Noel Siriyo Tony & 3 Others, CR 1415-1418 of 2014, 9 June 2016, unreported

Counsel:

N Hukula, for the Applicants
M Tamate, for the Respondent

7^th November, 2022

1. BY THE COURT: The four applicants, Naho Po’o, David Tavira Tony, Noel Siriyo Tony and Dick Titi Philip, apply for review of their conviction after trial on one count of wilful murder under s 299(1) of the Criminal Code and the sentence of life imprisonment.

2. At the time of their conviction and sentence in 2016, s 299 stated:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

3. The Criminal Code was amended earlier this year to remove the sentence of death as the maximum penalty and replace it with life imprisonment, but in other respects s 299(1) remains the same.

4. The trial judge upheld the State’s case that the four applicants were members of an armed group that attacked the deceased, Bao Kambira, who was in a house in a neighbouring hamlet, and each attacked him with weapons. Three eyewitnesses gave evidence for the State. Their evidence was found to be of good quality and safe to be acted on as they each identified the applicants, who they knew and recognised, as being actively involved in the attack and described what each applicant did to the deceased. His Honour rejected the alibi given in evidence by the applicants. His Honour found that the applicants had acted together for a common purpose and with a common intention to kill the deceased and that they aided and abetted each other in commission of the offence.

5. As to sentence, his Honour found that it was a case warranting the death penalty for each applicant. However, as the State did not press for a death sentence, the only appropriate sentence was life imprisonment.

6. The ground of review of conviction was that the trial judge did not give reasons as to how each applicant was caught by s 7 of the Criminal Code and failed to adequately explain how each applicant aided or abetted in commission of the offence of wilful murder.

7. As to sentence, it was argued that the trial judge erred by failing to take into account the degree of participation of the applicants and not taking into account mitigating factors, including the youthful ages of the applicants and that none of them had prior convictions; and further that the sentence was manifestly excessive.

REVIEW OF CONVICTION

8. The sole ground of review of conviction is in these terms, in respect of each applicant:

The learned trial judge erred in law and fact by not giving proper reasons in his decision on verdict as to how the applicant was captured under s 7 of the Criminal Code; and furthermore the learned trial judge failed to adequately explain how the applicant aided or abetted in the commission of the offence of wilful murder.

9. It is the applicants’ contention that their conviction is unsafe and unsatisfactory as the trial judge failed to give proper reasons for convicting them under s 7 of the Criminal Code, which states:

When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

10. Mr Hukula, for the applicants, submitted that the trial judge was obliged to pinpoint the evidence which supported reliance on s 7. He referred to the Supreme Court decision in Paliau v The State (2016) SC1537 in support of the proposition that a trial judge who proposes to invoke s 7 when convicting an accused must precisely set out the part of s 7 relied on and explain how it applies against an accused. The obligation to do that was acute in this case as it was a group attack and his Honour should have identified which particular evidence implicated which applicant.

11. We consider that the decision in Paliau must be confined to its own facts and circumstances as the conviction was based on circumstantial evidence, rather than direct evidence as in the present case. There is no principle that in each and every case in which a conviction is based on s 7, the trial judge must set out the particular part of s 7 relied on and set out the evidence in such a way as to identify the precise evidence and link it to the accused.

12. It is sufficient if the process of reasoning of the judge demonstrates that the provisions of s 7 have been considered and applied to the proven facts and that those facts support a conviction based on s 7. This is especially the case where there is an attack on a person by a group of people, acting with common intent (Banaso v The State (2022) SC2302, at para 69). In such circumstances, it is not necessary to determine which accused struck the fatal blow, as pointed out by Frost CJ in R v Sapulo Masuve & 2 Ors (1973) No 732:

In my opinion it follows from the relevant provisions [s 7] of the Criminal Code that, when several persons being present together attack at the same time the same man, using similar weapons or directing similar blows with the common intention to injure that man and that man dies as a result of injuries so inflicted each of the attackers is guilty of wilful murder, murder or manslaughter, according to the intent proved, because each of those several persons is acting in concert with the others of them at the time, each did the act constituting the offence under section (a), and also aided the others under section 7(c).

13. In the present case, the trial judge, having rejected the alibi offered by each applicant, stated that conviction of the applicants was not automatic and that the State still had to prove all essential elements of the charge. His Honour stated that it was proven, and not contested by the defence, that the offence of wilful murder had been committed against the deceased as he had been killed unlawfully with an intention to kill. The real issue was identification of the applicants.

14. His Honour set out the principles of identification evidence arising from the leading case John Jaminan v The State [1983] PNGLR 318 and applied them in reaching the conclusion that the three eyewitnesses had given evidence that was good and safe to be acted on. Their evidence was regarded as consistent and supported the following findings of fact, as set out in the judgment on sentence, The State v Noel Siriyo Tony & 3 Others, CR 1415-1418 of 2014, 9 June 2016, unreported:

The facts as found by the Court at trial are as follows. The prisoners are from Baira No 1 village in the Obura-Wonenara District of the Eastern Highlands Province. The prisoners Noel Siriyo Tony, David Tavira Tony and Dicky Titi Philip reside in the small hamlet of Hohorila within Baira No 1 village. Naho Po’o resides in a small hamlet called Namel Ples which is within close proximity to Hohorila.

The deceased, Bao Kambira, is also from Baira No 1 village. He resides in another small hamlet called Tavara. His hamlet is about 1 kilometre away from the hamlets where the four prisoners reside. The hamlet consisted of only three houses and belonged to the deceased and each of his two elder brothers and their families. Their houses are located closed to each other, about 15-20 metres apart.

On 14 February 2014 a man from Hohorila hamlet died. His name is Daivan Pasai. The people from Hohorila suspected Bao Kambira of practising sorcery on Daivan Pasai resulting in his death. They then decided to avenge the death of Daivan Pasai.

Early in the morning on 15 February 2014, the people of Hohorila converged on Tavara. There were many of them. They painted their faces with fire ashes and armed themselves bush knifes and bows and arrows. One of them had a gun. The person who carried the gun is the prisoner Noel Siriyo Tony. As they converged and surrounded Tavara hamlet they chanted war cries. The three other prisoners were also among the Hohorila people.

The deceased was in his elder brother’s house that morning. He was with his elder brother Homos Kambira and family. They were sitting around a fire warming their body when they heard people outside their house chanting war cries. They came out of the house to investigate when the prisoner Noel Siriyo Tony told them that the people of Hohorila were there to remove a poisonous or noxious weed with specific reference to Bao Kambira.

On hearing the remarks, Bao Kambira retreated back into his brother’s [house but when] flames engulfed the house Bao Kambira broke out of the house and ran towards his other brother's house. As he was running the prisoner Noel Siriyo Tony fired a shot from his gun at Bao Kambira but missed. The Hohorila people then chased after him.

When Bao Kambira reached the front of his brother's house his sister in-law jumped on him to shield him away from the ensuing attack. However, she was quickly removed thereby leaving Bao Kambira exposed and at the mercy of the Hohorila people who attacked Bao Kambira in a group.

The prisoner David Tavira Tony cut Bao Kambira with a bush knife on the leg. Another boy fired an arrow which struck Bao Kambira on his thighs. The prisoner David Tavira Tony again cut Bao Kambira with a bush knife on his right leg. When the deceased turned and raised his hands as a sign of surrender Atex Pasai and Philip Pasai fired arrows at Bao Kambira. The arrows struck the deceased on each side of his chest. The deceased then fell face forward to the ground. The prisoner Naho Po’o then went and cut the deceased with a bush knife. He cut the deceased on the back of the head. The prisoner Dicky Titi Philip also went and cut the deceased with a bush knife. He cut the deceased on the hands and also the fingers into pieces. The prisoner Noel Siriyo Tony also went and cut the deceased on the head. Other members of the group also joined in and cut the deceased practically all over the body including the back and shoulder areas. These people also speared the deceased's back with many arrows. The spears were lined up all over the body from the neck to the back of the body.

The description of the injuries in the medical report, the diagram and the photographs of the deceased’s body (Exhibits "S9", "S10", "S11", "S12" and "S13") depict a body that has been badly mutilated by the number of knife and arrow wounds.

The medical report was prepared by a registered Nursing Officer. He conducted an examination of the deceased body a day after the killing and described the injuries as follows:

On examination:

Facial deep knife wound

Scalp (head) deep knife wound, fracture skull

Neck deep knife wound - fractured spinal bone

Ear deep knife wound, ear intact

Both hands knife wound - amputated 4 fingers, 1 finger missing

Legs - both thighs with spear wounds each

Front body - 2 spear wounds

Back body - 44 spear wounds

On observation view of the death due to heavy blood losses, fractured spinal and skull bone causing brain damage.

There is no doubt in my mind that the killing of the deceased easily fits the description as brutal, vicious, horrific, horrendous, heinous, wanton, barbaric and senseless. It was a cold-blooded killing of an innocent, defenceless and harmless young man.

15. We note that the above findings of fact are set out in the judgment on sentence. The findings were not set out that way in the judgment on verdict. In the verdict, the trial judge, after stating that he was satisfied that the identification evidence of the State witnesses was good and safe to be acted upon, stated:

In the final analysis, I find that each of the four accused had acted together for the common purpose and with common intention. They had clear motive and strong intention to take away the life of Bao Kambira and their concerted efforts or concerted actions on 15 February 2014 at Tavara hamlet in Baira No 1 village is manifestation of their criminal intention. They aided and abetted each other in the commission of the offence. The attack of Bao Kambira was vicious, senseless, brutal and barbaric. It was without doubt, unlawful and wilful. For all these reasons, I am satisfied beyond reasonable doubt that the State has proved its case against each of the four accused.

16. However, earlier in the judgment on verdict, the trial judge described the evidence of the three eyewitnesses in detail and noted that their evidence was consistent with each other. Then his Honour stated that he accepted their evidence.

17. In these circumstances, it can be appreciated that his Honour did implicitly make findings, in the way that he set out the findings of fact in the judgment on sentence, as to what each applicant had done in the attack on the deceased, and how their individual acts aided and assisted each other in committing the offence of wilful murder.

18. We reject the submission that the process of reasoning of the trial judge was unclear or that his Honour failed to adequately explain how each applicant aided and abetted each other. On the contrary, we find that the trial judge sufficiently pinpointed the evidence against each applicant, which supported reliance on s 7 of the Criminal Code. The review of conviction is dismissed.

REVIEW OF SENTENCE

19. The grounds of review of sentence are in these terms:

• The learned trial judge erred in law in his sentencing discretion when he failed to take into account the degree of participation of the applicants in the commission of the offence when sentencing them to life imprisonment.
  
• The learned trial judge erred in his sentencing discretion when not taking into consideration the mitigating factors present in the case of their ages. And that they were all first-time offenders.
  
• The learned trial judge erred in law in his sentencing discretion in sentencing the applicants to life imprisonment which was manifestly excessive considering the circumstances of their case.
  

20. In determining these grounds, it must be understood that the trial judge observed, properly in our view, relying on the leading Supreme Court judgments in Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836, that this was a case that warranted the death penalty. However, the death penalty was not sought by the State, so his Honour sentenced the applicants at the next most serious level, life imprisonment. His Honour’s reasoning is explained in the following passage from the judgment on sentence:

As I have already stated at the very outset, and I will reiterate again, the killing in this case brutal, vicious, horrific, horrendous, heinous, wanton, barbaric and senseless. It was a cold-blooded killing of an innocent, defenceless and harmless young man. Although the killing of the deceased has the hallmarks of category 4 of the wilful murder in Manu Kovi (supra) guideline I note the State has called for the penalty under category 3. Notwithstanding that there are some mitigating factors present including the prisoners are young offenders and they are first-time offenders and some compensation was paid I am of the opinion that these factors have been rendered insignificant by the gravity of the offence.

The killing in this case occurred in broad daylight in full public view in the presence of relatives of the deceased including young children. The deceased life was first threatened from within the privacy of a dwelling which he was fully entitled to seek refuge in. The prisoners and their cohorts invaded his privacy in breach of s 44 of the Constitution. He was accused of practising sorcery but had not been given any opportunity to defend himself, let alone through a fair and impartial process. He was condemned and sentenced to death without due process and there were fundamental breaches of ss 35 and 37 of the Constitution which provisions guarantees a right to life and right to full protection of the law. It clearly demonstrates that there is blatant disregard for the respect for the rule of law and in particular the fundamental rights and freedoms and the dignity and sanctity of a human life.

None of the prisoners have expressed any remorse in relation to the offence and offered no apology or contrition, none whatsoever.

There is too many killing from use of dangerous weapons such as bush knives, axes, kitchen knives and firearms. The offence is very prevalent right throughout the country and particularly in the Highlands provinces and the Eastern Highlands Province is no exception. People are resorting to dangerous weapons too readily to resolve their grievances and disputes without recourse to established dispute resolution systems.

The offence in this case, without doubt, is indeed very serious.

In my view this case definitely warrants a very strong punitive and deterrent sentence. Although the defence counsel submits for a punishment according to the degree of involvement I consider that to do so would underscore and diminish the gravity of the offence. With all due respect, in my view, the facts of the case in Soti Mesuno (supra) fit well within category 3 type killing under the Manu Kovi guidelines and therefore warrant a much stiffer penalty including life imprisonment.

In my view, the prisoners must be made to face the full force of the law as they each have been convicted as principal offenders by virtue of s 7 of the Code. In Gimble v The State [1988-89] PNGLR 271 the Supreme Court held that as a general rule, in cases where an offence is committed in a group all participants involved in a crime is to be sentenced in similar manner, notwithstanding the role or part played by the offender. In effect all offenders are deemed jointly and severally guilty on equal footing to the extent that they each aided and abetted each other in the commission of the offence. Having said that I am also mindful of the competing principle that where two or more persons are convicted of the same offence, it is necessary and appropriate to consider punishment separately according to the role each of the offenders played in committing the offence. ... Be that as it may, ultimately, in my view, it matters not at the end of the day in this case whether sentence is considered separately or jointly because as I said each of the prisoners easily qualify for the death penalty under the 8-point criteria suggested by the Court in Steven Loke Ume (supra) because the killing was committed in the course of committing another serious offence, that is, arson.

However, on the basis of the State's position and in the exercise of the Court's discretion, each of the four prisoners are hereby sentenced as follows to be served at Bundaira Correctional Institution or such places as the Commissioner for Correctional Services may determine:

Noel Siriyo Tony - Life Imprisonment in Hard Labour;

David Tavira Tony - Life Imprisonment in Hard Labour;

Dicky Titi Philip - Life Imprisonment in Hard Labour;

Naho Poha - Life Imprisonment in Hard Labour.

21. We endorse the comments of the trial judge that this was a case of such gravity that it prima facie attracted the death penalty for each applicant.

22. We find that his Honour did not fail to consider the degree of participation of each applicant. His Honour did not fail to take account of mitigating factors. His Honour made no identifiable error in the exercise of his sentencing discretion. The sentence of life imprisonment was not manifestly excessive. The review of sentence is dismissed.

CONCLUSION

23. The review of both conviction and sentence is dismissed.

ORDER

(1) The application for review of conviction and sentence is dismissed.

(2) The conviction of each applicant on one count of wilful murder under s 299(1) of the Criminal Code and the sentence of life imprisonment for each applicant are affirmed.

__________________________________________________________________
Public Solicitor: Lawyer for the Applicants
Public Prosecutor: Lawyer for the Respondent