Kengemar v State [2022] PGSC 114; SC2313 (18 November 2022)

SC2313

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 12 OF 2022

JOSEPHA KENGEMAR & SYLVIA KENGEMAR
-Appellants-

V

THE STATE
-Respondent-

Waigani: Bona, Kaumi, and Dowa JJ
2022: 25^th October and 18^th November

APPEAL - CRIMINAL LAW – AGAINST CONVICTION – Appellants assaulted the victim causing permanent injury to the left eye- Appellants denied the allegations and one appellant raised defence of provocation- Assessment of evidence based on credibility of witnesses- Corroboration of state witnesses by independent witnesses in GBH cases is not a legal requirement-No identifiable error apparent on the face of the findings on conviction - Appellate Court reluctant to disturb findings- Appeal dismissed.

The appellants appeal against conviction on a charge of grievous bodily harm under section 319 of the Criminal Code Act. The appellants appeal the conviction on the basis that the trial court relied on inconsistent/contradictory witness statements, and for failing to consider evidence of independent defence witness and for rejecting the defence of provocation.

Held:

1. By virtue of section 6 of the Supreme Court Act, an Appellate Court has all the powers, authority, and jurisdiction of a judge exercising the jurisdiction of the National Court.
   
2. On appeal against findings of fact, the Appellate Court has a statutory duty to form its own independent opinion as to the proper inferences to be drawn from evidentiary facts. However, the trial judge’s decision is to be given proper weight. The Appellate Court is not at liberty to disturb the trial judge’s findings of fact and findings as to credibility unless the trial judge has fundamentally misconceived the evidence and that consideration is given to the whole of the decision. Re Pok v State (1983) SC254 and Evertz v State [1979] PNGLR 174.
   
3. Having found no obvious error casting reasonable doubt as to the safeness or satisfactoriness of the verdict, the appeal was dismissed, and conviction affirmed.
   

Cases Cited:

John Beng v The State [1977] PNGLR 115
Pok v State (1983) SC254
Evertz v State [1979] PNGLR 174.
Kelly Kai Kapuni v The State (2016) SC1506

References cited

Section 319 of the Criminal Code (Ch. 262) (the Criminal Code).

Counsel

J. Bibilo, for the Appellants
D. Kuvi, for the Respondent, State

DECISION ON APPEAL

18^th November, 2022

1. BY THE COURT: The appellants appeal the decision of the National Court given on 21^st January 2022 whereby the appellants were both found guilty and convicted on one count of Grievous Bodily Harm (GBH) and sentenced to three years imprisonment. The appeal is against conviction only as an application for leave to appeal against sentence was refused.
   

Brief facts

2. The brief facts are that on the 19^{th of} August 2018 at Works Compound, 4 Mile, National Capital District, the accused’s (appellants) and the victim gathered with their respective relatives for a mediation to solve a previous argument between the victim, Jenny Toba, and the accused, Sylvia Kengemar. It was later agreed that the victim would compensate the accused. And as the victim was walking off after the mediation, Josepha Kengemar ran after her, pulled her by the hair and punched her on her head several times. Sylvia then joined Josepha and they both assaulted the victim. The victim was on the ground unconscious with blood on her face. As a result, the victim received permanent injury to the left eye.
   
3. The State alleged that the actions of the appellants intended to do grievous bodily harm to the victim and were charged under section 319 of the Criminal Code accordingly.
   
4. The appellants denied the charge. They were found guilty after trial and were both sentenced to three years imprisonment.
   

Grounds of Appeal

5. The grounds of appeal are:
   
   1. The trial judge erred in accepting the contradictory statements of the two state witnesses, Jenny Toba, and Marie Rena.
      
   2. The trial judge erred by relying on Marie Rena’s evidence given that her sworn evidence contradicted her earlier statement given to police.
   100. The trial judge erred in not considering that the state failed to provide an independent witness to give corroborative evidence.
        
   4. The trial judge erred by not considering the statement of the defence independent witness, Peter Dumbgo, who was present at the mediation and gave evidence during trial as to what transpired during the mediation.
      
   5. The trial judge erred in convicting the appellant, Josepha Kengemar, when there was evidence of provocation.
      

Issues

6. The issues raised by the grounds of appeal are:
   
   • (i) Whether the trial judge erred in relying on contradictory and inconsistent statements of the two state witnesses Jenny Toba and Marie Rena rendering the verdict unsafe.
     
   • (ii) Whether the trial judge erred in not considering that there was no independent witness for the state to give evidence at the time of the fight.
     
   • (iii) Whether the trial judge erred by failing to consider the evidence of the defence independent witness, Peter Dumbgo.
     
   • (iv) Whether the trial judge erred by ruling that there was no defence of provocation?
     

LAW ON APPEAL AGAINST CONVICTION

7. Section 23 of the Supreme Court Act states that the Supreme Court will allow an appeal only if it thinks that one of the following instances were established:
   
   1. The verdict is unsafe or unsatisfactory.
   2. There was a wrong decision on any question of law.
   100. There was a material irregularity in the course of the trial.
        
8. The principles of law on appeal against conviction in this jurisdiction is established in the Supreme Court case of John Beng v The State (1977) PNGLR 115. It states:
   

“On appeal against conviction, the Supreme Court must be satisfied 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.”

9. On appeal against findings of fact, the Appellate Court has a statutory duty under section 6 of the Supreme Court Act to form its own independent opinion as to the proper inferences to be drawn from evidentiary facts. However, the trial judge’s decision is to be given proper weight. The Appellate Court is not at liberty to disturb the trial judge’s findings of fact and findings as to credibility unless the trial judge has fundamentally misconceived the evidence and that consideration is given to the whole of the decision. See Pok v State (1983) PNGLR SC254 and Evertz v State (1979) PNGLR 174.
   

Consideration of the Issues

Issue No. 1

Whether the trial judge erred in relying on contradictory and inconsistent statements of the two state witnesses Toba and Rena rendering the verdict unsafe. (Grounds (a) and (b))

10. The Appellants submitted that the trial court erred in accepting the contradictory and inconsistent statements of the two state witnesses Jenny Toba and Marie Rena which rendered the conviction unsafe. The Respondent submitted that there was no major contradiction in the statement of the said state witnesses, nor were there any serious inconsistencies that were fatal to the state’s case.
    
11. The transcript shows there appears to be instances of contradictory and inconsistent statements in the evidence of the state witnesses Jenny Toba and Marie Rene. Detailed submissions were made by both counsel for the parties at the lower court in respect of these statements. The trial court delivered a 29 paged written judgment. We observe the trial judge addressed each of the contentions raised by the defense counsel. The trial court dismissed those contentions holding that the statements were not inconsistent and where there were differences, they were sufficiently explained and not fatal to the main issue.
    
12. One example of how the trial judge dealt with a contention is this. It was alleged by the defence that the witness Marie’s statement to the police was inconsistent with her oral evidence as to the timing of the assault. In the statement to the police, she said the assault took place after the mediation but in the oral evidence she said the assault took place before the mediation. At paragraph 119 of the judgment, the trial judge in dismissing the contention said this:
    

“In Marie’s evidence, where the defence put to her suggested inconsistencies, she sufficiently explained that as they were talking to open the mediation, the accused person’s family were trying to fight Jenny and so Jenny left. When asked if that was after the mediation as per her statement to the police, she said yes. I accept that she was referring to two things, firstly that the mediation had started when they were starting to talk, but it did not progress and had to end because the fight occurred, and everyone had to leave. Her story is not inconsistent to Jenny’s story in this regard nor is it inconsistent with her prior statement to police in the same regard”.

13. There is another example of seemingly inconsistent statements given by the state witnesses which the trial judge dealt with. That is; Jenny testified that the appellant Sylvia Kengemar hit her on the face whereas Marie said in her evidence that Sylvia hit her (Jenny) three times on the left side of her head. The trial judge dealt with their evidence in paragraphs 114 -115 of her judgment.
    

“114. Although Josepha said she was the only one who hit Jenny, and Sylvia denied involvement, both Jenny and Marie said Sylvia did assault Jenny as well. Jenny said Sylvia hit her on the face whilst Marie said Sylvia hit Jenny three times on the left side of her head. If Jenny and Marie coached each other, given the significance of the left eye injury supported by the medical report, Marie would have also and very easily said that Sylvia punched Jenny nowhere else but in the left eye just as Jenny said and as contained in the Medical Report. But Marie did not say that. She said from her observations, she saw Sylvia punch Jenny on the head. For that, I find Marie to be honest. She would have easily made up the story if she wanted to, but she did not. She told her story from what she observed. Hence, although their stories were different in this regard, they are not inconsistent, and they would not have coached each other. I do not find that they are lying.

115. Further. I note that Marie was observing from a distance before she ran closer towards Jenny. There is a possibility that she would have missed seeing Sylvia punch Jenny on the face or the eyes to be specific. Regardless, I accept that Marrie was there when she witnessed the assault...”
     
14. In summing up the evidence, the trial Judge found the state witnesses truthful and their testimonies credible and trustworthy. At paragraphs 112 of her judgment, the trial Judge remarked:
    

“112. Whilst it is true that Jenny and Marie lived in the same household, there is no evidence to suggest that they coached each other to tell their story. If they did, their stories would for the most part of it be identical in the words they used. That was not the case. The inconsistencies that the defence pointed out were sufficiently explained. They told their story according to what each of them observed, from where they were observing and their understanding of the questions by counsels at that time. Consequently, I find that they did not lie. I accept them as witnesses of truth.”

15. After considering the evidence, the submissions of parties and the trial judge’s findings of fact and findings as to credibility, we find no error warranting a disturbance of the trial Judge’s findings. We will therefore dismiss grounds (a) and (b) of appeal.
    

Issue No. 2

Whether the trial judge erred in not considering that there was no independent witness for the state to give evidence at the time of the fight. (Ground c).

16. The appellant made no submissions on this ground. Counsel for the Respondent acknowledged that although care is needed to weigh the evidence of one group of family members to that of the other, there is no rule of law requiring corroboration of evidence of either side. Counsel submitted further relying on the authority of the Supreme Court decision in Kelly Kai Kapuni v The State (2016) SC1506 that there is no rule of law or practice that the State witnesses must be independent in the sense of not being related to the victim of an offence.
    
17. The state witnesses Jenny Toba and Marie Rene are related. They are mother-in -law and daughter -in-law. The appellants are also related as mother and daughter. The victim, Jenny Toba and appellant Sylvia Kengemar are related by the latter’s marriage to the victim’s son, Elvis Toba. The underlining issues leading up to the commission of the offence is between members of the same family divided into two groups. It would have been ideal to call an independent witness. The state did not call any. Despite the absence of an independent witness the trial Judge accepted the evidence of the victim and her daughter -in-law as truthful. At paragraph 121 of the judgment her Honour said this:
    

“Whist there is no independent witness for the State and where Jenny and Marie come from the same household, there is no evidence to suggest that they have coached each other. I accept their evidence that both accused persons assaulted Jenny in the manner explained by the state witnesses in their evidence to court. I also accept that both defendants are responsible for each other’s actions by operation of section 7 of the Criminal Code.”

18. The trial court was entitled to make findings of fact and conclusions it reached. We agree with the Respondent’s submissions that there is no rule of law or practice requiring corroboration of the evidence given by the victim and her daughter -in -law by an independent witness. We find no error in the decision and dismiss this ground of appeal.
    

Issue No. 3

Whether the trial judge erred by failing to accept the evidence of the defence independent witness, Peter Dumbgo. (Ground d)

19. Counsel for the Appellants submitted that the trial Judge erred in not considering the evidence of the independent defence witness, Peter Dumbgo, and offered no reasons for rejecting his evidence. Counsel for the Respondent conceded that the trial Court did not consider the evidence of Peter Dumbgo but submitted that there is no miscarriage of justice as it is questionable as to whether the witness was independent in the light of evidence provided by the appellants. The State submitted before the trial court and again in this court that Peter Dumbgo is not a credible witness, and his independence is questionable because none of the two appellants made mention of his involvement in the mediation when they gave evidence and yet the witness said it was Sylvia who laid the complaint resulting in the mediation held that day.
    
20. As the Appellate Court, we are not in a good position to that of the trial judge, to assess the credibility of the evidence of Peter Dumbgo. What is clear though, is that his evidence was to corroborate the evidence of the appellants. Peter Dumbgo was a significant witness for the defence. He gave evidence that he is a magistrate and was present at 4 Mile on 19^th August 2018 for the mediation at an invitation by the appellant Sylvia Kengemar. His main testimony was that at the start of the mediation, the victim, Jenny Toba uttered insulting words directed at Sylvia as she walked away. Sylvia’s mother, Josepha, ran after Jenny and assaulted her. Sylvia did not join her mother to assault Jenny.
    
21. The transcript shows the trial Judge did not deal with Peter Dumbgo’s evidence. Was the trial Judge bound to consider his evidence. Did this failure result in miscarriage of justice. Although the trial judge was not bound to specifically discuss and consider the evidence of this or any witness, the failure provides freedom to the appellate court to consider the evidence and arrive at its own conclusion by virtue of section 6 of the Supreme Court Act. However, the exercise of this freedom is subject to giving due weight and consideration to the whole of the decision of the trial Judge.
    
22. The trial Court accepted the evidence of the state witnesses as truthful and rejected the evidence of the appellants and the defence. Where does that leave Peter Dumbgo’s evidence. Insofar as it seeks to support the evidence of the appellants, it is arguable that it has been rejected along with their evidence. To that end, the consideration of the evidence of Peter Dumbgo per se would be of little significance in the light of the overall findings of fact. To draw a conclusion other than that of the trial court would be a disturbance of the whole decision of the trial Judge which we will not do. We will therefore dismiss this ground of appeal.
    

Issue No 4

Whether the trial judge erred by ruling that there is no defence of provocation. (Ground e)

23. The appellant Josepha raised the defence of provocation at the trial. It was alleged that on 12^th August 2018 the complainant, Jenny, went to Sylvia’s home at Murray Barracks and insulted Sylvia, saying she was a prostitute and a person living with a HIV-vires. On 19^th August 2018 all the parties gathered at 4 Mile to resolve the matter through mediation. The defence witnesses said as the mediation commenced, Jenny was asked to apologize to Sylvia. Jenny refused, uttering the words “who are you, and I will say sorry? I cannot say sorry to this pamuk (prostitute)” referring to Sylvia and walked away. This angered Josepha who chased her and assaulted her.
    
24. Jenny denied saying these words. Her evidence was supported by Marie Rene.
    
25. The facts and evidence were contested. The trial Judge accepted the evidence of the state witnesses and rejected that of the defence. The lower court found that Jenny did say the insulting words only on 12^th August 2018 at Murray Barracks but not on 19^th August 2018 at 4 Mile. The lower court reasoned that although Josepha was not present on 12^th August when the words were said, she was upset about what was said about her daughter and the appellants were out for vengeance. The trial Judge was not satisfied that the elements of provocation under section 267 of the Criminal Code were established and thus rejected the defence raised by the appellant, Josepha.
    
26. We observe that the trial Judge addressed the issue thoroughly in her judgment at paragraphs 127-141. The decision was based on credibility
    
27. of witnesses and proper inferences drawn from common facts before the trial court. We cannot disturb the findings of the trial judge in the absence of any clear and fundamental misdirection or misconception of the assessment of evidence. Having found no obvious error, we will dismiss this ground of appeal.
    
28. In the end, all grounds of appeal are unsuccessful. We find no obvious error in the decision resulting in miscarriage of justice. The entire appeal be dismissed.
    

Sentence

29. The appellants submitted that if this court dismisses the appeal against conviction, the court make an order for the prisoners to serve the remaining prison term outside of prison with conditions. The Respondent opposed the application.
    
30. The appellants were sentenced to 3 years on 21^st January 2022. One year and six months was suspended. The appellants are currently on bail after serving some time. It was submitted they have two weeks and five days yet to serve to complete the term. What the appellants are asking is a review of the sentence. We note this is not a ground of appeal. More importantly, section 22(d) of the Supreme Court Act provides that an appeal against sentence requires leave and leave in this case has been sought and was refused. In the circumstances, the request is misconceived and is therefore refused.
    

ORDERS

The Court orders that:

(1) The appeal is dismissed.

(2) The National Court decision on conviction is affirmed.

(3) The appellants are to be taken into custody to serve their sentence.

(4) Time be abridged.

________________________________________________________________
Public Solicitor: Lawyer for the Appellants
Public Prosecutor: Lawyer for the Respondent