Jacob v State [2022] PGSC 69; SC2265 (29 July 2022)

SC2265

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 61 OF 2016

LUCY JACOB

V

THE STATE

Waigani: Batari J, Manuhu J, Berrigan J
2022: 29^th March and 29^th July

CRIMINAL LAW – conviction – murder – deceased killed in PMV truck – identification evidence – strength of – identifying witnesses – whether accurate and honest.

The primary court convicted the appellant of murder on the evidence that she stabbed and killed the deceased. The appellant appealed her conviction, relying on errors in convicting against the weight of the evidence and false evidence.

Held:

(1) Where the matter turns on credibility, an appeal court will not reverse the trial judge’s decision, unless convinced that the trial judge clearly misapprehended the facts or was clearly, manifestly or palpably wrong in his conclusions of fact: John Kaina v The State [1990] PNGLR 292; RD Tuna Canners Limited v David Sengi & Ors (2022) SC2232.

(2) 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: R v. Summers [1990] 1 Qd R 92.

(3) 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 acquaintance of the accused person, it is the duty of the trial judge to warn himself to: (i) be very cautious in concluding that identification has been established; and (ii) be satisfied that the identifying witness is not only honest in his/her evidence but also accurate: [1977] PNGLR 115; Sutton v R [1978] WAR, 94.

Cases Cited:

Papua New Guinean Cases
John Kaina v The State [1990] PNGLR 292
RD Tuna Canners Limited v David Sengi & Ors (2022) SC2232
Nebare Dege v The State (2009) SC1308
John Beng v The State [1977] PNGLR 115
SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC judgment of 30th April 2009)

Overseas Cases
Browne v Dunn (1893) 6 R 67
R v. Summers [1990] 1 Qd R 92
Sutton v R [1978] WAR, 94

APPEAL

The was an appeal against conviction.

Counsel

Mr N. Hukula, for the Appellant
Mr D. Kuvi, for the Respondent

29^th July, 2022

1. BY THE COURT: The appellant appeals against her guilty verdict by the National Court at Kwikila, Central Province where his Honour Mogish J convicted her of murder following a trial.
   

Background:

2. The appellant, Lucy Jacob was found guilty and convicted on the charge of causing the death of her husband, Michael Famu, when she stabbed him on the chest with a knife. She attacked her husband inside a PMV truck following an altercation. Both had been drinking prior to the stabbing. The incident occurred at Kubuna, Kairuku District, Central Province on the evening of 7 January 2015.
   

The trial evidence in brief

3. The evidence before the trial court comprised both documentary evidence and oral testimony from State and Defence witnesses.
   
4. The State’s first witness, Joseph Tama, spoke of being one of the many passengers onboard the same PMV truck the appellant and her deceased husband were in, returning from Port Moresby to Kairuku along the Hiritano Highway on the date in question. He sat opposite the couple directly behind the driver’s cabin.
   
5. He testified that the couple were drinking coffee punch, an alcoholic drink and that they argued. The altercation continued to where the PMV stopped at Kubuna junction, and some passengers got off. He heard the deceased saying in Kuni language; “Do not hold me, my wife might stab me.” The witness did not know who the deceased was addressing.
   
6. He said the appellant then stabbed the deceased on his chest. The deceased fled to the back of the PMV and jumped off the vehicle. The appellant followed. The PMV then left.
   
7. The second witness Tesi Ainuku alias Theresa Tesi was also on the same PMV truck. She sat next to the appellant and her husband and Joseph Tama on the same row on the driver’s side. There were many other passengers on the vehicle. The appellant and her husband were drinking in the vehicle, and they argued.
   
8. During the altercation, the deceased stood up to hit the appellant and from a sitting position, the appellant struck the deceased with a 40cm long knife. She heard the deceased uttering in Kuni language, “My wife has stabbed me with the knife”.
   
9. The witness’s concluding evidence was similar to the testimony of the first witness, Joseph Tama.
10. In cross-examination she responded that she knew the deceased as being from Devadeva Village, but he lived in Moresby. State witness John Avu was also on the PMV and sat towards the back of the truck. After the stabbing, she joined others to get off the truck. She conceded not knowing or seeing the appellant before the incident.
    
11. The third witness John Avu belatedly conceded being a passenger on the PMV truck. He too spoke of the appellant and her husband drinking and that at Kubuna junction, he got off and walked to his house. When he heard someone shouting, he returned to the road and saw the deceased lying on the ground. He did not know what happened to him and he did not see the appellant at the scene.
    
12. The last witness was the police investigator, Constable Nelson Buli. The extent of his evidence concerned the murder weapon. He could not produce the knife as it went missing after the stabbing.
    
13. The appellant in her defence denied stabbing her husband. She spoke of being attacked by State witness John Avu and relatives of her husband’s former wife. They attacked her and her husband at Kubuna Junction and forced them out of the vehicle. John Avu stabbed her on the head. The others fought her husband and stabbed him. She heard someone saying, ‘Mery sutim man, draiv na yumi go’. The attack on her and her husband was precipitated by someone saying to the deceased, “you are a hero from Laloki and you got married to this nice woman.” She did not call any witness in support of her version.
    
14. The trial judge disbelieved her story as unconvincing. His Honour also disbelieved one State witness, John Avu but otherwise held that the identification evidence was reliable and that the assault on the deceased was as told by State witnesses, Joseph Tama and Tesi Aku. The primary court found the appellant guilty and convicted her on the charge of murder.
    

Grounds of Appeal

15. The prisoner’s Notice of Appeal listed four factors as constituting cause for grievance which she summarised as:
    
    1. Lack of sufficient evidence;
    2. False statements from the witnesses;
    100. Poor representation by lawyer.
         
16. The ground on lawyer incompetence was abandoned at the hearing. In the context of lack of sufficient evidence, the appellant contends that her conviction is unsafe and unsatisfactory because of the absence of photographic evidence before the court and the absence of the murder weapon in the evidence.
    
17. On the issue of false evidence, the appellant contends that inconsistencies in the evidence against her makes her conviction unsafe and that it was relatives of the former wife of the deceased who attacked them and killed the deceased.
    

Applicable principles on appeal against conviction

18. 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.
    
19. 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. See, Nebare Dege v The State (2009) SC1308.
    

Grounds of Appeal: Lack of sufficient evidence

20. The specific issues raised concerning the absence of photographs and the murder weapon are inconsequential and/or misconceived.
    
21. Contrary to the appellant’s contentions, vital photographs of the scene of the incident and the vehicle in question were admitted into the evidence as Exhibits B1 to B7.
    
22. In Exhibit B7, State witness Tesi Ainuku marked the position where she sat in the PMV truck in relation to the deceased, the appellant and the first State witness, Joseph Tama, at the time of the incident. That is crucial evidence. The photographs lend consistency to the witness’s evidence of her proximity to the appellant when making the observation of the stabbing in the truck.
    
23. On the issue of non-production of the murder weapon, we agree with the primary judge’s conclusion that it is irrelevant. The death and the cause of death was not in dispute. In any event, the appellant’s case is that she did not stab the deceased.
    
24. The appeal stands or falls on the issue of identification and the reliability of witnesses.
    
25. The essence of the appellant’s contentions is that the conviction is against the weight of the evidence firstly due to discrepancies in the evidence of the State witnesses. Her counsel, Mr Hukula argued that the inconsistencies sufficiently tainted the honesty and reliability of the witnesses such as to raise doubt.
    
26. The question of credibility of a witness such as in this case, hinges on the honesty and reliability of his or her testimony on the issue of identification and the consistency of his or her evidence with such other proven facts, such as the medical findings on the cause of death.

27. It is settled that, 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.
       

John Beng v The State [1977] PNGLR 115; Sutton v R [1978] WAR 94.

28. In John Kaina v The State [1990] PNGLR 292 the Supreme Court relevantly 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)

29. This is well settled. As the Court held in RD Tuna Canners Limited v David Sengi & Ors (2022) SC2232, after a detailed review of relevant authorities, a finding of fact by a trial judge based on the credibility of witnesses may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where the decision at trial was glaringly improbable, contrary to compelling inferences, or palpably or manifestly wrong.
    
30. In this case, the strength of the identifying witnesses’ evidence was buttressed by the proximity of each of the witnesses to the appellant within the confined space of the PMV truck. This is crucial against the appellant’s case.
    
31. Her advocate did not seriously challenge State witnesses Joseph Tama and Tesi Aku as to either the honesty or the reliability of their identification evidence. At pp 134, 135 of the Appeal Book, the trial judge averted to the principles in John Beng v The State [1977] PNGLR115 and quite correctly concluded from the whole of the evidence:
    

“There was clear visibility and no obstacle denying the clear access to see the accused. There was sufficient light. It was not a fleeting glance. I take note of the caution in John Beng’s case... Such a caution can be excused in this case as the evidence is one of clear visibility and of quality identification of the accused, a known person and not a complete stranger.”

32. The trial judge’s assessment of the credibility of the witnesses in their oral testimony before him was the defining advantage this Court does not have. The trial judge critically assessed the credibility of the witnesses. He disbelieved the third State witness John Avu and relied on the evidence of Joseph Tama and Tesi Aku.
    
33. Whilst there are some inconsistencies in their evidence they can be dismissed as being inconsequential as they concern matters largely peripheral to the central issue of honesty and accuracy of the witness. Indeed, some inconsistency between witnesses on such matters is to be expected.
    
34. The two witnesses sat within meters of the appellant and her husband for some six hours in the confined space of the PMV truck. They cannot be mistaken about where the couple sat in the truck and their conduct leading up to the argument and the consequential stabbing.
    
35. The primary judge found no plausible cause for any other person to attack the deceased. The court found the appellant had a motive to attack her husband. The couple had been drinking which led to heated exchanges between them.
    
36. We iterate, this Court will not reverse the trial judge, where the matter turns on the issue of credibility, unless convinced that the trial judge misapprehended the facts or was clearly, manifestly or palpably wrong in his conclusions of fact.
    
37. It is apparent from the face of the record, that the conduct of the appellant’s case before the primary court left the defence at a distinctively general level. The line of cross-examination under the rule in Browne v Dunn (1893) 6 R 67 was not pursued. Defence counsel did not put forward a theoretical defence case, that the injury leading to death was caused by State witness John Avu and other relatives of the deceased’s former wife, or call evidence to support her proposition. Whilst the appellant was not obliged to do so, she did not raise her defence at the time of arrest and interview. In those circumstances, and having regard to the State’s evidence, and his assessment of the appellant’s demeanour, the trial judge was entitled to find that her evidence was a recent invention.
    
38. It is apparent that Mr. Hukula in advancing the appellant’s case has attempted to rely on inconsequential discrepancies from the face of the record to argue that justice miscarried as against the overriding effect of the totality of the evidence.
    
39. 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.
    
40. Besides, 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. See, SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC Judgment).
    
41. The appellant has not shown where the trial judge fell into error in the treatment of the identification evidence. She has not shown where the evidence is lacking in weight as regards the honesty and reliability of witnesses or where the judge misapprehended the facts or misapplied the law. The appellant’s general defence and submissions have no bearing against the totality of the evidence.
    
42. For similar reasons, the second and final issue of false evidence is without substance as the trial dismissed the appellant as a witness of truth having heard and observed her. We repeat our comments above.
    

Conclusion

43. The appellant has not demonstrated that the appeal should be allowed, and the verdict 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 that there was material irregularity during the trial. The primary court’s findings on the evidence of identification is overwhelmingly against the appellant. The appeal against verdict and conviction are bound to be dismissed and we make that conclusion.
    

Orders:

1. The appeal against verdict and conviction is dismissed and the conviction is affirmed.

_____________________________________________________________
Public Solicitor: Lawyers for the Appellant
Public Prosecutor: Lawyer for the State