Nare v Independent State of Papua New Guinea [2022] PGSC 87; SC2294 (7 September 2022)

SC2294

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV No. 09 & 65 OF 2018

BETWEEN:
TOMBAKE NARE & ALOIS TOROPO
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Goroka: Kaumi, Gora and Narokobi JJ
2022: 28^th & 29^th July, 7^th September

CRIMINAL LAW – Appeal against conviction – one Count of Murder – No Identifiable error in Conviction– Appeal against conviction refused and Conviction by the primary court affirmed – Section 155 (2) (b) of the Constitution

This is an application for review under s 155(2) of the Constitution by Tombake Nare and Alois Toropo against their conviction for one count of murder. The National Court found that the deceased was killed by the applicants who suspected him of using sorcery to kill their brother. The deceased was repeatedly slashed in a mob attack. The trial judge relied on the evidence of a single witness and rejected the applicants alibi as false thereby corroborating the evidence of the State witness to convict the applicants. Leave for review was granted, and this is the substantive review. The four grounds of review relied on by the applicants revolved around the trial judge’s reliance on a single State witness and the rejection of the alibi evidence.

Held

(1) The trial judge properly canvassed the evidence in totality and was correct in his opinion that the evidence of the only state witness in identifying and recognizing the applicants at the crime scene and immediately after the attack on the deceased was very probable and it was corroborated by the false alibi evidence.
(2) The trial judge in considering the evidence in totality, determined that the inconsistencies in the sole State witness’ evidence was not serious enough to the extent of depleting his credibility. The gist of his evidence was that he saw the applicants attack the deceased and this was not disturbed by the inconsistency of his evidence.

(3) The applicants’ alibi evidence did not conform with common sense and logic and should be rejected. The applicants were present when the bamboo ritual to determine the cause of a supposed sorcery induced death was first carried out on 10 April 2012, and when it failed to produce any results, it was repeated again the next day on 11 April 2012 which was when the alibi evidence said the applicants were on their way to Pangia station for shopping. It would be incredible that both applicants would leave the village to go shopping during a time when the bamboo ritual team from Erave were about to commence their supposed supernatural investigations into, not only the death of other people in the area, but also in relation to their very own brother who had passed on about a month earlier. The applicants alibi evidence is therefore rejected as false and therefore corroborates the sole State witness evidence.

(4) The applicants’ contention that the only State witness had a motive to lie as he is the biological brother of the deceased was not put to the State witness in cross-examination. The non-observance of the rule in Browne v Dunne (1983) 6R 67 HL does not necessarily mean the evidence sought to be relied on will be rejected. However, when considered in the totality of the evidence led, it may mean that the weight given to the evidence may be reduced or even rejected. In this case, the direct evidence identifying the applicants’ involvement and it being corroborated by the false alibi of the applicants lends itself to the conclusion that the applicants’ contention ought to be rejected.

(5) In view of our findings, we see no reasonable doubt as to the safeness and satisfactoriness of the verdict. The application for review of the conviction by the National Court is refused and the conviction by the National Court is affirmed.

Cases Cited:
Papua New Guinean Cases

John Beng v The State [1977] PNGLR 115
Bernard Touramasong & Others v The State [1978] PNGLR 337
Avia Aihi v The State (No.1) [1981] PNGLR 81
John Jaminan vs The State (No.2) [1983] PNGLR 318
Garitau Bonu and Rosana Bonu v The State (1997) SC 528
State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16 October 2001) N2298
Balbal v State (2003) SC860
Igiseng Investment Ltd v Star West Const (2003) N2498
Application by Herman Leahy (2006) SC855
Kitawal v State [2007] SC927
Camillus Parang v The State (2010) SC1068
Alois Erebe & Taros Togote v The State [2011] PNGSC51 SC1135
Benjamin Sengi v The State (2015) SC1425
Martin Kaiak v State [2016] SC 1505
Kelly Kapuni v The State [2016] SC 1506
Gelu Kombuk v The State [2016] SC1544
Bepi Girinuso Gihiye v The State [2016] SC 1546
Petrus Kua and Dominic Buna v The State SCREV No. 21 & 22 of 2019 Unreported (29 October 21)
Epi Hagi v The State SCREV No. 02 of 2019 Unreported (27 July 2022)

Overseas Cases

Brown v Dunn (1893) 6R 67 HL

Counsel:

B. Popeu, for the Appellant,
D. Kuvi, for the Respondent

07^th September, 2022

1. BY THE COURT: This is an application for review by Tombake Nare and Alois Toropo against their conviction for one count of Murder contrary to section 300 (1)(a) of the Criminal Code on 12 June 2015 by the National Court in Mendi.
   
2. The applicants were charged with one (1) count of Murder contrary to section 300 (1)(a) of the Criminal Code. They were arraigned on 03 June 2015, both pleaded not guilty to the charge ensuring a trial.
   
3. During trial the applicants raised the defence of alibi. The trial judge assessed the alibi evidence before returning guilty verdict at paragraphs 75 to 82 of his written judgment of verdict (pages 229 to 231 of the Review Book (RB)). The trial judge rejected the defence of alibi (page 231 lines 5 -10 of RB).
   
4. The facts were that, on 11 April 2012 between 10am and 11am the two co-applicants were amongst a group of people who went to the residence of the deceased, Kaiayabe Yoroka and his family at Kumiane village, Pangia District. The group comprised of men and women who were armed with bush knives, axes, sticks, stones, and bows and arrows. They suspected the deceased of killing their relative, Elvis Yoka Toropo through sorcery. When they arrived at the deceased’s residence, the group rushed towards the deceased and chopped him all over his body with bush knives. The deceased fell unconscious to the ground. He was rushed to the Mendi General Hospital and later transferred to the Kundiawa General Hospital where he passed away. The group then turned on the brother of the deceased, Pora Yoroka and attacked him and he received wounds to his head, arms and sides. He was taken to the common singsing area and held captive for two days. They built a timber post structure and hung the victim on it. He was later rescued by the Councilor and the Provincial Police Commander and other police officers.
   
5. Pursuant to Order 5 Rule 2 Supreme Court Rules 2012, the applicant Tombake Nare filed a Form 2, application for leave to review (Page 8 RB) on 14 February 2018, whilst the applicant Alois Toropo also filed a Form 2, application for leave to review (Page 5 RB) on 27 July 2018.
   
6. Leave was granted to the applicants for the Supreme Court to hear and determine their respective reviews by Cannings. J on 6 May 2022.
   
7. The appellants pursue their review of their conviction and abandon ground five of their application for review of their respective sentences.
   

THE LAW ON JUDICIAL REVIEW

8. The legal imperative for the Supreme Court to review decisions of the National Court is grounded in section 155(2)(b) of the Constitution which states unequivocally that the Supreme Court has the inherent power to review the decisions of the National Court.
   
9. Constitution, Section 155(2)(b)-

Section 155. The National Judicial System

(2) The Supreme Court-

(b) has an inherent power to review all judicial acts of the National Court; (italicizing and highlighting my emphasis)

10. The Supreme Court in the seminal case of Avia Aihi v The State (No.1) [1981] 81, enunciated this legal imperative, stating that the Supreme Court is vested with absolute discretion under section 155(2)(b) of the Constitution to review all judicial acts of the National Court. This principle has been followed religiously by the Supreme Court in numerous other cases over time, Application by Herman Leahy (2006) SC855 and Camillus Parang v The State (2010) SC1068 to name a few.
    

THE LAW ON REVIEW OF CONVICTION

11. The inherent powers of the Supreme Court to review all judicial acts of the National Court are crystalized under Section 22(1)(a)(b) of the Supreme Court Act 1975, which relevantly provides:
    

“22. CRIMINAL APPEALS

A person convicted by the National Court may appeal to the Supreme Court-

(a) Against his conviction on any ground that involves a question of law alone; and
(b) Against his conviction, on a question of mixed fact and law.”

(Italicizing and highlighting our emphasis)

12. The Supreme Court in the seminal case of John Beng v The State [1975] 115, enunciated that Section 22 of the Supreme Court Act 1975 provides that an appeal against conviction must show that in all the circumstances of the case the verdict was unsafe or unsatisfactory, or it was a wrong decision on any question of law, or there was material irregularity in the course of the trial.
    
13. The principles enunciated by John Beng v The State (supra) have been adhered to and reaffirmed since 1975 in numerous subsequent Supreme Courts over the years, inter alia, Gelu Kombuk v The State [2016] SC1544, Bepi Girinuso Gihiye v The State [2016] SC 1546, Martin Kaiak v State [2016] SC 1505, Kelly Kapuni v The State [2016] SC 1506, Petrus Kua and Dominic Buna v The State SCREV No. 21 & 22 of 2019 Unreported (29 October 21) and Epi Hagi v The State SCREV No. 02 of 2019 Unreported (27 July 2022).
    
14. Expounding on John Beng (supra), the test to be applied when the ground of appeal is that the convictions are “unsafe or unsatisfactory” is to be found in this celebrated authority. There the Supreme Court, after discussing and analysing decisions in the United Kingdom, relating to the expression “unsafe or unsatisfactory” held that on an appeal against conviction pursuant to S.22 (1) (a) of the Supreme Court Act, 1975, 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. This test has been applied in many other subsequent cases. See Bernard Touramasong & Others v The State [1978] PNGLR 337.
    

GROUNDS FOR REVIEW

15. The applicant, Tombake Nare’s four grounds for review of conviction can be found on page 8 of the RB and are as follows:
    
    1. The learned trial judge erred in law when he failed to consider that applicant called four witnesses in his defence and relied on the evidence of a single State witness to convict him.
       
    2. The learned trial judge made error in relying on the inconsistent evidence of the State witness.
       
    100. The learned trial judge erred in rejecting the alibi evidence of the applicants.
         
    4. The learned trial judge erred in accepting the evidence of the only State witness as a witness of truth, when he had a motive to lie being the only biological brother of the deceased.
       
16. The applicant, Alois Toropo’s grounds for review of conviction are identical to Tombake Nare’s so there is no need for repetition.
    
17. The applicants persist their review of their convictions on the basis that when the errors they raise in their four grounds for review are considered individually or in conjunction with each other, they should in all circumstances cast a reasonable doubt to the safeness and satisfactoriness of the verdict.
    

ISSUE

WHETHER THERE IS IN ALL THE CIRCUMSTANCES A REASONABLE DOUBT AS TO THE SAFENESS OR SATISFACTORINESS OF THE VERDICT?

18. We will address the grounds for review raised by both applicants as one as they are identical, suffice to say that reference will be made to them individually where necessary.

A. The learned trial judge erred when he failed to consider that the applicants called four witnesses in their defence and relied on the evidence of a single State witness to convict them.

19. The applicants in furtherance to their contention on point and in agreeing with the trail judge that the fact that several witnesses repeated the same story in court did not make it true (pp 228 line 6 of RB), submitted that the single State witness, Pora Yoroka placed the defence witness Nare Epe at the crime scene at the material time (pp 56 line 9 of RB). That Nare Epe’s evidence (pp130 line 1-17 of RB) was consistent with the medical report (pp 275 of RB) and that Nare was never shaken in cross-examination. This is all the applicants submit with respect to this raised ground of review.
    
20. The primary issue at trial was whether the applicants were present at the scene and were part of the group that attacked and killed the deceased at his residence at Kumiane village.
    
21. In deciding the primary issue, the trial Judge stated at pp 229 line 10 of RB:

“In this case the outcome would, in my opinion rest largely on the credit and on whose version of the evidence is more probable in the circumstances.”

22. The trial judge was correct in what he said with respect to the primary issue, especially in the circumstances of this matter where there was one State witness against four defence witness, that the ultimate finding of guilt or innocence depends on the credibility of witnesses and the reliability of their evidence.
    
23. The Supreme Court in Garitau Bonu and Rosana Bonu v The State (1997) SC 528 applied the rule that in the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. This was also applied in the State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16 October2001) N2298. In Balbal v State SC 860 (2003) the Supreme Court stated the way to receiving and determining whether or not to accept a witness and his testimony is well trodden one. Rules of evidence have much to see and do with the reception and rejection of evidence. Logic and common sense do play an important role in that or have been noted and applied in many decisions of both this and National Court. This is an addition to any serious inconsistencies that might exist in the testimonies of the witness called by a party which makes any acceptance of the evidence difficult.
    
24. Further, we are of the unanimous view that the trial judge was correct in ruling that the false alibi raised by the applicants corroborated the evidence of the sole State witness. John Jaminan v The State (No.2) [1983] PNGLR 318
    
25. Our view is further fortified by what the Supreme Court stated in Alois Erebe & Taros Togote v The State [2011] PNGSC51 SC1135, (Cannings, Kariko, Kassman JJ), in determining the credibility of a sole identification witness against several alibi witnesses, “We see no merit in this ground of appeal. There is no rule of law or practice that the evidence of an identification as to how he or she was able to recognize the accused the accused must be corroborated”.
    
26. We are of the view that the trial judge properly canvassed the evidence in totality and was correct in his opinion that the evidence of the only state witness in identifying and recognizing the applicants at the crime scene and immediately after the attack on the deceased was very probable (see pp 230 line 10 RB).
    
27. We see no merit in this ground for review and reject it.
    

B. The trial judge made an error in relying on the inconsistent evidence of the State witness.

28. The applicants contend that the trial judge erred in relying on two inconsistencies by the State witness. That the first inconsistency was within his in-court evidence and the second inconsistency was the medical report.
    
29. The Supreme Court in Balbal v State (supra) stated that logic and common sense do play an important role in that or have been noted and applied in many decisions of both this and National Court and that this is an addition to any serious inconsistencies that might exist in the testimonies of the witness called by a party which makes any acceptance of the evidence difficult. In Igiseng Investment Ltd v Star West Const (2003) N2498 the National Court stated that inconsistencies and illegal accounts indicates lack of credibility.
    
30. We are of the view that the trial judge in considering the evidence in totality, did consider these inconsistencies and did not consider them to be serious to the extent of depleting the credibility of the sole State witness. The gist of this sole State witness’s evidence was that he was at Kumiane village on both the 10^th and 11^th of April 2012 and saw the magic bamboo processions on both days and saw the applicants attack the deceased with bush knives on the second day, 11^th April 2012.
    
31. We reject this ground for review.
    

C. The learned trial judge erred in rejecting the alibi evidence of the applicants.

32. The applicants raised alibi as their defence and we note that the trial Judge in properly considering its supporting defence evidence, noted its remarkable aspects. We agree with the trial judge’s view that the applicants ‘alibi evidence did not conform with common sense and logic, particularly that both applicants would leave the village to go shopping during a time when the bamboo ritual team from Erave were about to commence their supposed supernatural investigations into, not only the death of other people in the area, but also in relation to their very own brother who had passed on about a month earlier. We note that the applicants were present when the bamboo ritual was first carried out on 10 April 2012, and when it failed to produce any results it was repeated again the next day on 11 April 2012 which was when the applicants said they were on their way to Pangia station for shopping. We note that the trial judge in considering the alibi asked the pertinent questions at para 78 and 22 of his written ruling on verdict. (Page 231 lines 6-13 of RB) Balbal v State (supra).
    
33. We agree with the trial Judge’s assessment of the alibi witness Luke Norombu, that his evidence was incredible. (Page 231 line 24 of RB).
    
34. And further agree with his summary of the alibi evidence, “The whole alibi evidence by the accused persons and their alibi witnesses Luke Norombo and Nare Epei is concocted and calculated to remove the accused from the scene of the crime. Unfortunately, all that they said they did that morning in so far as going to Pangia Station is illogical and against common sense. So, if Pora’s evidence was not corroborated, the false alibi corroborates it.”
    
35. The Supreme Court in John Jaminan v The State (No,2) [1983] PNGLR 318 enunciated principles relating to alibi evidence, inter alia, a false alibi corroborates the prosecution case. The Supreme Court in this case stated that a false alibi given in evidence in court, which is subsequently determined untrue, may, depending on circumstances, amount to corroboration. In the present appeal we are of the unanimous view that the trial judge did not fall into error by concluding that he disbelieved and rejected the applicants’ alibi and further deciding that their false alibi amounted to corroboration of the evidence of the sole State witness. We read the transcript particularly concerning the defence of alibi and are of the view that the trial judge properly canvassed the alibi evidence and correctly applied the principles enunciated by case authorities on alibi to the evidence and correctly rejected the defence of alibi raised by the applicants. John Jaminan v The State (No,2) (supra)
    
36. We also note that quite apart from the false alibi of the applicants, the trial judge properly considered the totality of the evidence adduced during the evidentiary process of the trial and correctly decided that all the essential elements of the offence were proven by the State beyond reasonable doubt. In other words, just because he had rejected the alibis of the applicants the trial judge did not decide that a conviction should automatically be returned against the applicants at that juncture, he properly considered all the evidence adduced before him and we are unanimous in our view that there was adequate evidence for the trial judge to correctly decide that the State had proven all the elements of the offence.
    
37. We reject this ground of review.
    

D. The trial judge erred in accepting the evidence of the only State witness as a witness of truth, when he had a motive to lie being the biological brother of the deceased.

38. Regarding this ground for review we are of the view that this was not put to the State witness in cross-examination which would have allowed him an opportunity to answer and for the trial judge an opportunity to assess his answer and thereby a breach of the rule in Brown v Dunn (1983) 6R 67 HL
    
39. The rule in Browne v Dunn (supra) (which requires the accused’s principal defences to be put to the prosecution witnesses in cross-examination) requires that the gist of the proposed defence be put to the State witnesses; not that every detail be put to them. Kitawal v State [2007] SC927 (22 February 2007) Jalina J, Mogish J, Cannings J.
    
40. The applicants’ contention that the only State witness had a motive to lie as he is the biological brother of the deceased was not put to the State witness in cross-examination. The non-observance of the rule in Browne v Dunne (1983) 6R 67 HL does not necessarily mean the evidence sought to be relied on will be rejected. However, when considered in the totality of the evidence led, it may mean that the weight given to the evidence may be reduced or even rejected. In this case, the direct evidence identifying the applicants’ involvement and it being corroborated by the false alibi of the applicants lends itself to the consequence that the applicants’ contention ought to be rejected for not observing the rule in Browne v Dunne.
    
41. We reject this ground of review.
    

CONCLUSION

42. We are of the view therefore that there is no doubt as to the safeness and satisfactoriness of the verdict.
    

ORDER

43. We order that:

1. The application for review of the conviction by the National Court is refused.
2. The conviction by the National Court is affirmed.
   

________________________________________________________________
The Public Solicitor: Lawyer for the Applicant
The Public Prosecutor: Lawyer for The State