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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCREV NO 103 OF 2018
WESLEY YANDUO
Appellant
V
THE STATE
Respondent
Waigani: Batari J, Cannings J, Toliken J, Pitpit J, Lindsay J
2022: 23rd May
2023: 21st February
CRIMINAL LAW – appeal against conviction for wilful murder, Criminal Code, s 299(1) – identification evidence – whether trial judge properly dealt with alleged inconsistencies in identification evidence of State witnesses.
APPEALS IN CRIMINAL CASES – whether Supreme Court in hearing an appeal should be confined to grounds of appeal relied on by appellant – Supreme Court Act, ss 6 and 23.
This was an appeal against conviction after trial on one count of wilful murder. The State’s case was that the appellant, a male adult, killed the deceased, a 14-year-old boy, by attacking him with a bushknife, severing one hand and inflicting other serious injuries, leading to his death. It was alleged that it was an intentional killing that occurred the day after a member of the appellant’s community had been killed in a fight with members of the deceased’s community. The trial judge accepted the identification evidence of two State witnesses who testified that they saw the appellant, who they recognised, attack the deceased, and found that the evidence of two other State witnesses was consistent with the identification evidence. His Honour rejected the appellant’s alibi that he was not present and concluded that the appellant killed the deceased, intending to cause his death. The appellant was sentenced to death, but this appeal was against conviction only. The ground of appeal was that the trial judge failed to identify and address inconsistencies and inadequacies in the evidence of the two identification witnesses, in that his Honour erred in fact and law by not properly assessing: (1) inconsistencies in the evidence of those two State witnesses; (2) inconsistencies between the oral testimony of those State witnesses and statements they made earlier to Police; (3) the unbelievability of the evidence of those two State witnesses.
Held:
(1) (Per Batari J (dissenting)): The Supreme Court is authorised by ss 6 and 23 of the Supreme Court Act, in an appeal against conviction, to review all the evidence that was before the National Court and to make findings of fact and draw inferences from the evidence given in the National Court and to consider all the circumstances of the case, including legal or procedural errors not raised in the grounds of appeal, in determining whether the verdict was unsafe or unsatisfactory.
(2) Here, there were material irregularities in the trial, in that the trial judge unfairly denied the appellant the opportunity to call two witnesses to support the defence of alibi and failed to rule on the alibi defence before assessing the strength of the prosecution case, which had the effect of denying the appellant his constitutional right to a fair trial and led to a substantial miscarriage of justice.
(3) The Supreme Court ought not to allow such fundamental errors to remain uncorrected. The failure of the appellant to raise those errors in his grounds of appeal does not excuse the Supreme Court of its obligation to correct them.
(4) The appeal should be upheld and the conviction quashed and a retrial ordered.
(5) (Per Cannings J, Toliken J, Pitpit J & Lindsay J): If there are inconsistencies in the evidence adduced by the State, it is the duty of the trial judge to identify them, assess their significance and give reasons for regarding them as significant or insignificant. The mere existence of inconsistencies does not mean that the State’s case should be rejected. However, an assessment should be made of how significant they are.
(6) There were some inconsistencies in the oral evidence of the identification witnesses. However, these issues were not pressed by defence counsel in cross-examination or closing submissions and were not significant in the context of the evidence of seeing the appellant cut the deceased. It was not incumbent on the trial judge to identify and assess the significance of the inconsistencies.
(7) There were inconsistencies between the oral evidence of the identification witnesses and their witness statements given to the police. These issues were pressed by defence counsel in cross-examination and closing submissions. They ought to have been identified and assessed by the trial judge in the judgment on verdict. The failure to do that was an error of law.
(8) The believability or otherwise of the evidence of the identification witnesses was a matter for the trial judge, who was in a superior position to assess the demeanour of each witness and the credibility of their evidence. No error was made by the trial judge regarding assessment of the believability of the evidence of the identification witnesses.
(9) Though one error of law was made, it was inconsequential as the inconsistencies between the oral evidence of the two identification witnesses and their police statements were insignificant in the context of the trial judge’s positive assessment of the honesty, credibility and reliability of their recognition evidence, which was supported by the evidence of the two other State witnesses. The verdict of guilty was not unsafe or unsatisfactory. The appeal should be dismissed and the conviction for wilful murder affirmed.
(10) Ordered (per Cannings J, Toliken J, Pitpit J & Lindsay J; Batari J dissenting): Appeal dismissed and conviction for wilful murder affirmed.
Cases Cited
The following cases are cited in the judgment:
Alois Erebebe & Taros Togote v The State [2011] 2 PNGLR 70
Ambrose Lati v The State [2015] 1 PNGLR 242
Bakeri Pen v The State [1997] PNGLR 289
Brian John Lewis v The State [1980] PNGLR 219
Devlyn David v The State [2006] 1 PNGLR 187
Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No 2) [1969-70] PNGLR 410
Glen Otto Kapahi v The State [2010] 2 PNGLR 301
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
John Karo & Peter Ripo v The State (2018) SC1649
Korokoro Kanukanu & Pimul Komeao v The State (2020) SC1913
Roland Tom v The State (2019) SC1833
The State v John Bosco (2004) N2777
The State v Noutim Mausen [1995] PNGLR 54
The State v Wesley Yanduo (2018) N7524
The State v Wesley Yanduo No 2 (2018) N7596
Titus Makalminja v The State (2004) SC726
Vanimo Forest Products Ltd v Ossima Resources Ltd (2013) SC1275
Wesley Yanduo v The State (2021) SC2183
Counsel
J F Unua, for the Appellant
D Kuvi, for the Respondent
21st February, 2023
1. BATARI J: The National Court sitting at Kimbe convicted the appellant of wilful murder on 23 October 2018. He was sentenced to death on 7 December 2018. He has appealed to this Court against his conviction and sentence. This is the hearing on his conviction only.
2. The background to this appeal is set out in the majority decision. In brief, the killing involved two neighbouring factions of settlers at Galai Land Settlement Scheme (LSS) Kimbe, West New Britain Province. One Isaac Vitalas of Section 13 was allegedly killed by settlers from Section 16 on 5 December 2015. The following day, relatives of the late Isaac Vitalas brought the body to Section 16 to demand compensation. During the commotion that followed, the appellant was alleged to have ambushed fleeing youths from Section 13 and attacked Naegel John Las, a 14-year-old boy with a bush knife, causing hand and head injuries. He died shortly after the attack. The appellant was identified as the person who killed the deceased.
3. I have read and reviewed the whole of the trial evidence pursuant to s 6 of the Supreme Court Act. I have also read the draft reasoning of the majority and the proposed outcome of the appeal that the verdict of guilty was not unsafe or unsatisfactory, there was no error on a question of law, there were no material irregularities in the trial and no miscarriage of justice occurred.
4. To the contrary, there are clearly on the face of the record, material irregularities which affected a fair trial the appellant was entitled to under the Constitution. Consequently, a substantial miscarriage of justice occurred. On that basis and for the reasons following, I have the misfortune to disagree with the proposed outcome of the appeal.
5. The irregularities occurred on several aspects of the trial proceedings, the obvious being in the treatment of the appellant’s alibi defence and the calling of his witnesses. I will deal with the primary court’s considerations of the appellant’s alibi defence, first.
6. With respect, the primary court’s purported reasoning on the merit and strength of the alibi defence are found at paragraphs 19 to 29 in the written judgment (pp 10 to 20 supplementary appeal book). It is also found towards bottom page 94 to mid-page 99 of the appeal book. I say ‘purported reasoning’ because it is tenuous. There are two aspects to this: (i) The trial judge did not make a specific finding on the alibi defence, though it may be inferred, he did not believe the alibi defence. (ii) substantial part of the discussions was on the “reasons” for upholding the objection against John Yanduo giving evidence.
7. It is trite, where the defence of alibi is raised, the accused person need not prove his or her alibi or innocence on the higher standard of proof. But in practical terms, it is incumbent on the defence to lead some evidence of alibi. Whilst the evidentiary burden is on the accused in that respect, the onus of proof remains on the prosecution throughout: John Jaminan v The State (No 2) [1983] PNGLR 318.
8. The key features of those principles in Jaminan v The State were affirmed by the Supreme Court in Alois Erebebe & Taros Togote v The State [2011] 2 PNGLR 70 as follows:
(See also, helpful guides set out by Lay J in The State v John Bosco (2004) N2777 and Cannings J in The State v Noutim Mausen [1995] PNGLR 54.)
9. The principles approved in Erebebe & Togote imply clear and orderly assessment of the alibi defence (or any statutory defence). If there is evidence or some evidence adduced on the defence, it is imperative for the court to assess and clearly set out the reasons for accepting or rejecting the evidence, while the onus remains with the prosecution to prove its case beyond reasonable doubt, irrespective of whether the alibi defence is strong or not.
10. In this case, the alibi defence was not consistently assessed and ruled on before assessing the strength of the State’s case. Discussions on the alibi defence were lost in the reasoning that covered the whole of the evidence including lengthy reasoning against the calling of an alibi witness, which I cover below. This is procedurally incorrect and makes the reasoning confusing. This adds to the irregularity I will cover below.
11. Ruling against alibi witness: This is the most significant error which affected the fair conduct of the defence case. When defence counsel Mr Takua informed the court at the end of the accused’s testimony he would next call the accused’s father, John Yanduo, State Prosecutor, Mr Galama, objected to John giving evidence on the basis that he would give biased evidence as he has been present in court during the testimony of the other witnesses, including the accused. The primary judge upheld the objection in a ruling from bottom page 95 to mid-page 99 of the appeal book (AB). (See also paragraphs 19 to 29 at pages 10 to 20 of the supplementary AB). His Honour comprehensively discussed, inter alia, the reasons why the appellant’s father, John Yanduo, would be an unreliable witness whose evidence would be unfair and prejudicial against the prosecution case.
12. With respect, the primary judge clearly misunderstood and misapplied the law and principles on calling of a witness who has been present in court throughout the trial. His Honour peremptorily dismissed the demeanour, truth, and reliability of a witness before the witness gave evidence. This is wrong in law. It also runs contra to the appellant’s constitutional right to a fair trial. His right to be accorded proper hearing in his defence was denied. The primary court had erroneously prevented a witness from testifying simply because he "was in Court throughout the trial." This is contrary to law, that the Court must hear the witness and assess the weight of the evidence at the end of all the evidence. Too, the Court cannot properly discuss the weight of the evidence to be given by a witness without having heard the evidence of the witness.
13. I find support for my views in Bakeri Pen v The State [1997] PNGLR 289 where the Supreme Court held:
In our view, a trial judge should not expressly or by tacit implication prevent or hinder a witness from testifying simply because he or she "was in Court throughout the trial". The Court should hear the witness and assess the weight of the evidence at the end of all the evidence. To indicate to a witness or the parties or their counsel that the witness's evidence will be given very little or no weight before he or she has given her evidence amounts to tacitly preventing or hindering the witness from giving his or her evidence. The Court also cannot properly discuss the weight of the evidence to be given by a witness without having heard the evidence of the witness. Failure to observe these principles amounts to a fundamental error which can vitiate a trial. [Emphasis added]
14. In the preceding paragraphs, the Court made these observations:
Secondly, we know of no rule of procedure or law that a witness for a party who is present in Court when witnesses give evidence cannot be prevented from giving evidence. The principles in fact are to the contrary. The law is adequately set out by the National Court, Kearney Dep CJ presiding, in Madeline Kiso v Angela Manumanua [1981] PNGLR 507 and we simply endorse what his Honour says at p 509:
‘Second, it may be that the magistrate refused to let the defendant testify because, as he said, "defendant was in court throughout the trial". I have seen many cases where magistrates have refused to hear witnesses for that reason, another common belief.
Again, that is not the law. An informant and a defendant have a right to be present at all times during the hearing of their case. Other witnesses should, in general, remain out of the hearing of the Court until they come in to give their evidence; see s 70 of the Act. A magistrate may permit a witness to remain in court and listen to other witnesses before he testifies; but usually a magistrate would not allow him to remain. Suppose a magistrate orders all the witnesses present in the court to go outside the court, until they are called, but by some mischance one of them in fact remains in court? The law is very clear that even in such a case the magistrate cannot refuse to hear that witness's evidence. See Moore v Lambeth County Court Registrar (2). Of course, it may be that the magistrate would not give much weight to the evidence of such a witness. It would be open to the prosecution to comment on the fact that he had heard the other witnesses. But as I say, no witness can be prevented from testifying simply because he "was in court throughout the trial"; and certainly, a defendant, who has a right to be there in court all the time, cannot be so prevented.’ [Emphasis added]
15. The failure of the trial court to observe these principles amounted to a fundamental error which can vitiate a trial. The denial of the defence witness to give evidence on the basis that his evidence would be biased and unreliable, constituted a procedural irregularity and gave rise to a substantial miscarriage of justice.
16. In addition, the primary judge with respect, excessively and unreasonably exercised judicial discretion in denying the appellant adequate opportunity to call his witnesses in support of his defence in all the circumstances of the trial proceedings. The circumstances of the trial were that:
17. All these factors support the view that the appellant was denied a reasonable opportunity to be heard in his defence.
18. The denial of a reasonable opportunity to call a witness in defence is in my view tantamount to denial of natural justice and consequently a material irregularity in the trial proceedings, thereby giving rise to miscarriage of justice. This is consistent with the spirit of the constitutional rights in ss 37(4)(f) and 59 of the Constitution. In Vanimo Forest Products Ltd v Ossima Resources Ltd (2013) SC1275 (Salika DCJ, Cannings & Logan JJ) the Supreme Court stated:
That a trial judge in an adversarial proceeding must afford the parties natural justice is axiomatic (Constitution, Sections 37(11), 59; Sela Gipe v The State [2000] PNGLR 271, Jimmy Mostata Maladina v Posain Poloh (2004) N2568). One cardinal feature of the principles of natural justice is the affording to each party of an opportunity to be heard. All parties must be given the opportunity to make oral submissions. Failure to provide that opportunity will constitute a procedural irregularity and give rise to a substantial miscarriage of justice (Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2006) SC837, Bank South Pacific Ltd v Gibson Nad SCA No 41 of 2008, 14.05.10, unreported (Mogish J, Gabi J & Yagi J). It is a mistake though to confuse a failure to afford a party an opportunity to be heard with a failure by that party to take up an opportunity extended. That is this case. [Emphasis added]
19. The Vanimo Forest Products Ltd case concerned a civil appeal. The principles are the same. There, the Court held, all the parties must be given the opportunity to be heard in oral submissions. A failure to do so will constitute a procedural irregularity and give rise to a substantial miscarriage of justice.
20. In the case before this Court, the defence before the trial judge indicated calling two other alibi witnesses and asked for an adjournment to call the next witness who had left the Court premises due to threats. The trial judge refused to adjourn because there was nothing in writing. It was past 3.20 pm when the judge ordered the trial to proceed (p 79 AB).
21. With respect, given the nature of the charge before the court and the time of the day, there is clear imputation of coercion and perceived bias against the defence’s case.
22. Defence counsel had raised a very critical issue affecting the fair conduct of the defence case. It is not unusual, that in court proceedings involving payback killings or killings involving two disputing factions, relatives of the deceased resort to verbal threats and heavy-handed tactics against witnesses to sabotage a fair trial.
23. This is not a novel suggestion in the circumstances of this country. It is real. The court must be vigilant against witnesses being threatened because, it is against the interests of justice and unconstitutional. It is incumbent on the trial judge to ensure the decision of the court is not influenced by external forces.
24. A fair trial should not be compromised by time conveniences. The trial court should be very cautious not to prevent an accused or his lawyer to call a witness where circumstances have arisen affecting availability of the witness. The court should be slow to summarily dismiss a complaint of witness threats due to non-compliance with some procedural niceties without hearing from the parties, particularly in a criminal trial where the life of the accused hangs on the balance of the evidence, as in this case.
25. When Mr Takua indicated his witness was unavailable due to threats, he would not have had the time to obtain full instructions and file the notice with supporting documents insisted on by the court. Counsel would not have been able, in the time limitations and pressure associated with the ongoing trial, to file written notice of the threats or adjournment. With respect, the trial judge should adjourn in all the circumstances of the case to allow the defence time to file proof of his claim and hear the parties on the absence of the witness.
26. On the face of the records, it is clear, the alibi defence was marred by unfairness, denial of natural justice and bias. The defence was denied reasonable opportunity to call its witnesses in what may be perceived as an unreasonably excessive exercise of judicial discretion. In my view, this is enough to constitute a procedural irregularity and gave rise to a substantial miscarriage of justice.
27. On the satisfactoriness of the conviction, I am not satisfied that the element of intent in wilful murder is proven where the attacker leaves the victim to walk away from the scene with his injuries and dies sometime later. If there was an intention to kill, the appellant had the perfect opportunity to carry out that intention. He was alone with his nemesis and armed with a bush knife. He could simply make sure the victim was dead in the attack as planned. The misinterpretation of the intention was quoted by the trial judge at para 19, p 100 of the appeal book as follows:
And then after he cut Nigel John Las he called out, ‘Mangi 1-3 ya, wanpla bilong ol mi katim pinis,’ ‘I am from 1-3, I have killed one of them.’
28. The highest intention admitted here was the intention to cause grievous bodily harm, wrongly interpreted as an admission to a killing. The conviction on wilful murder was unsafe. On the requirement for strict proof of intention, the prosecution failed to discharge the onus to prove the element of intent on the high standard of proof beyond reasonable doubt.
29. In the end, the fundamental error committed by the primary judge also denied the accused person, the right to protection of the law under s 37 and a fair trial under 37(4)(f) of the Constitution. That is sufficient to vitiate the trial.
30. It is settled that to succeed on an appeal against conviction the appellant must, under s 23 of the Supreme Court Act, establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law, or there was a material irregularity in the trial. If the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred. If not, it may dismiss the appeal: applying John Beng v The State [1977] PNGLR 115 and the host of cases that have followed, two of these being Ambrose Lati v The State [2015] 1 PNGLR 242 and Roland Tom v The State (2019) SC1833.
31. It is usually the case, that the level of satisfactoriness of the verdict in an appeal is confined wholly to the assessment and determination of the grounds of appeal and matters raised in the submissions by counsel representing the State and the appellant, to the exclusion of other appealable points or indiscretions apparent on the face of the records.
32. In my view, this often leads to a substantial miscarriage of justice where a significant error on a question of law, or material irregularities in the trial are not corrected by the reviewing Court on appeal. Such treatment of appeal and reviews by this Court runs contra to the settled principles in John Beng and Nebare Dege, that the 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. The phrase “in all the circumstances” is sufficiently wide and clearly intended to allow this Court to go outside the appeal grounds to correct legal and procedural errors that would lead to a substantial miscarriage of justice or unjust results if left unresolved on appeal.
33. This view is founded on s 6 of the Supreme Court Act which authorises that an appeal to the Supreme Court is by way of rehearing of the evidence given in the primary court, the decision of which is appealed against. Section 6 reads:
(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court—
(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b) to draw inferences of fact.
(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
34. The Supreme Court in Titus Makalminja v The State (2004) SC726 explained the application of s 6 and the power of the Court to review the evidence that was before the trial judge, to make such findings and draw inferences from the evidence that were before the trial judge as follows:
So, by virtue of this provision, this Court can exercise the powers, authority and the jurisdiction that would have been exercised by the trial judge. This means, this Court can revisit the evidence given before the trial judge and make findings of facts which may or may not be the same as those found by the trial judge. This Court can exercise these powers where the trial judge has misconstrued the evidence or has put less emphasis or greater emphasis on evidence or has overlooked some evidence. This point was expressed in MVIT v John Etape [1994] PNGLR 596. The Supreme Court at page 601, said:
‘The appellant relies on s 6 of the Supreme Court Act, Ch 37, which provides for the Court’s powers on appeal. Section 6(2) provides that this Court has all the powers, authority, and jurisdiction of a judge exercising the jurisdiction of the National Court. In the circumstances, this Court may substitute a finding on evidence before the trial judge.’
This approach was broadly stated in the case of Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No 2) [1969-70] PNGLR 410. The Supreme Court in that case was hearing an appeal under s 38 of the Land Titles Commission Ordinance 1962-1968, from the decision of a single judge who set aside parts of the decision of the Land Titles Commission. The appeal was on the ground that the decision was against the weight of the evidence. The Supreme Court while exercising powers similar to those granted under s 6 of the Supreme Court Act, held that the appellant was entitled to the appellate court’s review of all the evidence, its consideration of their probative value, its evaluation on the inferences drawn from such evidence and its consideration of the relevant laws so far as they affected such evidence. The Supreme Court held that the appellate court was not simply to substitute its own conclusions for those of the decision under appeal if it disagreed with them.
This principle is expressed at the footnote:
‘Upon an appeal under s 38 on the ground that the decision under appeal is against the weight of the evidence, the appellant is entitled to the appellate Court’s review of that evidence, its consideration of its probative value, its evaluation of the inferences drawn from that evidence and its consideration of the relevant law so far as it affects that evidence. The appellate Court is not simply to substitute its own conclusions for those of the decision under appeal if it disagrees with them...’ (see also at page 416).
Then at page 439, the Supreme Court cited a passage from the decision of the Privy Council on the West African Court of Appeal decision in Ibrahimah v Gariba [1954] WACA 174.
‘An Appeal Court is not barred from coming to its own conclusion on the facts, and where a judgment has been appealed from on
the ground of the weight of evidence, the Appeal Court can make up its own mind on the evidence, not disregarding the judgment appealed
from, but carefully weighing and considering it ...’
35. The application of s 6 of the Supreme Court Act and the principles to be followed in the rehearing of the appeal in essence, provide the legislative and procedural basis for the
appellate court to determine an issue of fact or law irrespective of whether it was raised in the court below or not. The appellant
is entitled to the appellate court’s review of all the evidence, the inferences to be drawn from the evidence and its consideration
of their probative values, and its consideration of the relevant laws so far as they affected such evidence and draw its own conclusions: Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No 2) [1969-70] PNGLR 410.
36. The duty of the appellate court in reviewing the decision of the primary court is onerous. A rehearing on the evidence given in the court the decision of which is appealed against, is not a simple exercise by the appellate Court to substitute its own conclusions for those of the decision under appeal if it disagrees with them. The power of the appellate court includes the discretion to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it (s 6 Supreme Court Act).
37. It is on the foregoing that I differ from the majority decision. I would uphold the appeal, quash the conviction, and order a retrial regarding the findings on procedural irregularity giving rise to a substantial miscarriage of justice.
38. In the alternative, I would quash the conviction on wilful murder and convict the appellant on the alternative verdict of murder under s 539(1) of the Criminal Code.
39. CANNINGS J, TOLIKEN J, PITPIT J & LINDSAY J: Wesley Yanduo appeals against his conviction after trial on one count of wilful murder under s 299(1) of the Criminal Code, which, at the time of conviction, 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.
40. The Criminal Code was amended in 2022 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.
41. The appellant attempted to lodge his appeal soon after the date he was sentenced, but was given an incorrect form to complete, which explains why the file reference for this case, SCREV 103 of 2018, suggests that it is a review as distinct from an appeal. However, the proceedings have been amended by order of the Court so that, while the file reference remains, the proceedings are for all intents and purposes an appeal against conviction (Wesley Yanduo v The State (2021) SC2183). We are satisfied that the appeal is properly before the Court.
42. The State’s case was that the appellant, a male adult, killed the deceased, Naegel John Las, a 14-year-old boy, by attacking him with a bushknife, severing one hand and inflicting other serious injuries, leading to his death. It was alleged that it was an intentional killing that occurred on 6 December 2015 at the area of the Galai oil palm estate called Section 16, near Kimbe, West New Britain Province, the day after a member of the appellant’s community at Section 13, Isaac Vitalas, was killed in a fight with members of the deceased’s community.
43. The trial judge accepted the identification evidence of the first two State witnesses – Jackson Imilas and Brody Takura – who testified that they saw the appellant, who they recognised, attack the deceased. His Honour also relied on evidence of the third State witness, Douglas Simon, who testified that he saw the deceased after he was attacked and before he died, who was asked by his mother who attacked him and the deceased told his mother that ‘Wesley Yanduo [the appellant] cut me’. His Honour treated that as evidence of a dying declaration (an exception to the hearsay rule) for the purposes of s 20 of the Evidence Act. His Honour also relied on evidence of the fourth State witness, Elizabeth Klabasa, who said that on the day of the deceased’s death, the appellant was aggressive and assaulted her as she was at Section 16 looking after the body of the Section 13 youth who had been killed on 5 December 2015.
44. The trial judge rejected the appellant’s alibi, given in sworn evidence, that he was not present at the place at Section 16 when the appellant was attacked as he was at a nearby creek away from public view at that time, having a wash. The appellant, who was the only defence witness, was not regarded as a witness of truth and his alibi was uncorroborated.
45. His Honour concluded that the appellant killed the deceased, intending to cause his death. The appellant was convicted as charged (The State v Wesley Yanduo (2018) N7524).
46. His Honour imposed the sentence of death (The State v Wesley Yanduo No 2 (2018) N7596). However, this appeal is against conviction only. The appellant has filed a separate proceeding regarding the sentence, and the hearing of that proceeding is dependent on the result of this appeal.
GROUND OF APPEAL
47. The sole ground of appeal is in these terms:
The trial judge erred in fact and law by not putting his mind to the inconsistencies in the evidence of the State witnesses and placing reliance on the State witnesses’ evidence, primarily Jackson Imilas and Brody Takura, who gave evidence:
(1) which were seriously inconsistent with each other as to the distance from, the timing and setting of the crime scene;
(2) contrary to their initial statements which were given to the Police and therefore their evidence was calculated to naming and ensuring the conviction of the appellant as the perpetrator;
(3) which was unbelievable as the witnesses were fleeing from a retaliation fight and yet were calm and composed to witness a homicide without fear of their lives from a very close distance under a lighted and clear space.
48. We acknowledge that ss 6 and 23 of the Supreme Court Act provide that an appeal to the Supreme Court is a rehearing on the evidence given in the National Court and that the Supreme Court shall uphold an appeal if it thinks that the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. In conducting the rehearing and in determining whether the verdict is unsafe or unsatisfactory, we consider that the Court must be guided by the grounds of appeal. It should not look beyond the grounds of appeal except in the most exceptional of cases. We do not consider that this case is sufficiently exceptional to warrant going outside the sole ground of appeal relied on by the appellant.
49. It is the appellant’s contention that the trial judge failed to identify and address inconsistencies and inadequacies in the evidence of the two identification witnesses, in that his Honour erred in fact and law by not properly assessing:
(1) inconsistencies in the evidence of those two State witnesses;
(2) inconsistencies between the oral testimony of those State witnesses and statements they made earlier to police;
(3) the unbelievability of the evidence of those two State witnesses.
50. The two identification witnesses were Jackson Imilas and Brody Takura. Both testified that they were with the deceased when chased by the appellant into an oil palm block and that the deceased attempted to evade the appellant but could not do so and that they witnessed the appellant attack the deceased with a bushknife.
51. In the notice of appeal it is argued that their evidence was “seriously inconsistent with each other as to the distance from, the timing and setting of the crime scene”.
52. This is a hollow argument that was not elaborated on at the hearing of the appeal. No details were provided as to how the evidence of each of the witnesses was inconsistent as to distance, timing or setting of the crime scene.
53. We acknowledge that there were some inconsistencies in the oral evidence of the identification witnesses regarding the order in which they ran when they were chased by the appellant and the number of times that the appellant cut the deceased.
54. We also acknowledge the general principle recognised by the Supreme Court in many cases that if there are inconsistencies in the evidence adduced by the State, it is the duty of the trial judge to identify them, assess their significance and give reasons for regarding them as significant or insignificant. The mere existence of inconsistencies does not mean that the State’s case should be rejected. However, an assessment should be made of how significant they are (Devlyn David v The State [2006] 1 PNGLR 187, Glen Otto Kapahi v The State [2010] 2 PNGLR 301, John Karo & Peter Ripo v The State (2018) SC1649, Korokoro Kanukanu & Pimul Komeao v The State (2020) SC1913).
55. We find no disregard of that principle by the trial judge. Though his Honour did not expressly identify apparent inconsistencies in the oral testimony of the two identification witnesses, these issues were not pressed by defence counsel in cross-examination or closing submissions. The apparent inconsistencies were not significant in the context of the evidence of both Jackson Imilas and Brody Takura seeing the appellant cut the deceased. In these circumstances it was not incumbent on the trial judge to identify and assess the significance of the inconsistencies. The trial judge did not err in the manner alleged.
56. We agree with the appellant’s contention that there were some inconsistencies between the oral evidence of the identification witnesses and their witness statements given to the police (which were admitted in evidence after being tendered by the defence as prior inconsistent statements).
57. In oral testimony Jackson Imilas said that:
58. In his police statement Jackson Imilas:
59. In oral testimony Brody Takura said:
60. In his police statement Brody Takura stated that:
61. These issues were pressed by defence counsel in cross-examination and closing submissions. They ought to have been identified and assessed by the trial judge in the judgment on verdict. They were not. The failure by the trial judge to address and assess the apparent inconsistencies was an error of law. We uphold the appellant’s argument in that regard.
3 EVIDENCE OF STATE WITNESSES UNBELIEVABLE
62. Mr Unua for the appellant submitted that the evidence of Jackson Imilas was not believable as he was stating on the one hand that he was in a very stressful and extreme situation which would make any normal person terrified and seeking to flee or hide from the attacker, but on the other hand he managed to stand an unspecified distance away from the attack and just stood and watched his friend being killed.
63. Mr Unua submitted that the evidence of Brody Takura was equally unbelievable as he was somehow able to witness in broad daylight what was happening from a distance of only eight metres and not be seen by the appellant. He too, unbelievably, just watched and said and did nothing.
64. We agree that these were valid points to make in submissions to a trial judge, and they were in fact raised by the defence counsel, Mr Takua. The trial judge assessed the credibility, including believability, of the evidence of the two identification witnesses in the following terms:
30. I observed Jackson Imilas give evidence. He was observant clear concise and truthful. He was not in doubt as to his evidence. He gave it in a forthright manner and was never distracted from what he observed. He named the accused as the person he saw on that day and none other. That it was the accused who cut Naegel John Las. I find him a truthful witness and have no reservation in the evidence that he has given and I believe his evidence as the truth as it unfolded on that day. He had no motive except to tell the truth as he saw. He was not shaken in cross examination and remained strong in his evidence.
31. I make similar observation in the case of the witnesses Brody Takura, Douglas Simon and Elizabeth Klabasa all whom I find as truthful witnesses who swore and upheld that truth and veracity in their evidence. They all showed what they observed because the conditions on that day and the surrounding circumstances did not prevent what they observed and I have no reservation to believe what they told the court as the truth as it unfolded before their eyes. They had no other motive to tell as best as they can without any exaggeration additions or subtraction of what was seen before their eyes.
32. I give due warning in accordance and in fulfilment of law that this is broad daylight identification at close quarters by witnesses who are stationed as they were when they ran together from the fight intending to escape as they did. Naegel John Las was accompanied by Jackson Imilas, Brody Takura, and Jeffery Nalo. In full view unobstructed in clear broad day both Jackson Imilas and Brody Takura made positive and clear identification of Wesley Yanduo. This identification was made at closed quarters 8 meters apart unobstructed in a clear area dry and cleared for a garden. They had no place to hide except to get under palm frond heaped there. But they made clear and unobstructed observation of what the accused Wesley Yanduo did to Naegel John Las. They all lived at the same locality and were all from Sepik and knew each other prior to the 6th of December 2015. And at the time they were making the observation it was not of a stranger nor of a masked hood in difficult lighting so that they were strained obstructed to make the observation they made. I caution that mistakes have been made even of close friends and relatives. But the evidence is that accused said, Banisim em Banisim em, yupela ol man bilong kilim ol man, condone him off condone him off you are people who kill people, and then after he had cut Naegel John Las, he called out, “Mangi one-three ya wanpela bilong ol mi cutim pinis.” I am from one-three I have killed one of them. It was early in the afternoon and the evidence both for and against is that there was no difficulty in the conditions to make the identification that these witnesses made because it was conducive and warranted by the circumstance then and there prevailing. I make similar findings in respect of the hearing of the witnesses that this is what was uttered by the accused and coupled with the sighting it was not a case of a mistaken identity but of a fellow Sepik from Kubalia East Sepik Province. And all the witnesses themselves were Sepiks Jackson Imilas is from East Sepik Province, Brody Takura is also, Douglas Simon is from Drekikir East Sepik Province, and Elizabeth Klabasa West Sepik Province.
65. We consider that the issue of the believability of the evidence of the identification witnesses was adequately addressed by the trial judge. It was an issue that his Honour was in the best position to address. We are obliged to defer to the superior position of the trial judge to assess the demeanour of each witness and credibility of their evidence (Brian John Lewis v The State [1980] PNGLR 219, Alois Erebebe & Taros Togote v The State [2011] 2 PNGLR 70). Here, the trial judge applied the principles on identification evidence from the leading case of John Beng v The State [1977] PNGLR 115 and assessed each of the State witnesses, including the identification witnesses, as honest and reliable.
66. We consider that the evidence of neither of the identification witnesses was so incredible or fanciful as to be unbelievable. They each gave evidence that they knew and recognised the appellant and saw him in full view cut the deceased. No error was made by the trial judge regarding assessment of the believability of the evidence of the identification witnesses.
WHAT IS THE OUTCOME OF THE APPEAL?
67. We have upheld one of the three arguments underlying the ground of appeal: that the trial judge erred in law by not properly assessing apparent inconsistencies between the oral evidence of the two identification witnesses and the witness statements they made to police.
68. We now assess what consequences flow from that finding in the light of ss 23(1), (2) and (3) and 28(1) of the Supreme Court Act.
69. Sections 23(1), (2) and (3) (determination of appeals in ordinary cases) state:
(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—
(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.
(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
(3) If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.
70. Section 28(1) (powers of Supreme Court in special cases) states:
If on an appeal against conviction, the Supreme Court thinks that—
(a) a miscarriage of justice has occurred; and
(b) having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,
the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.
71. We consider that although it would have been preferable for the trial judge to expressly deal with the argument that was put to him about the inconsistencies between the oral evidence of the identification witnesses and their witness statements to the police, his Honour’s failure to do that was inconsequential given his positive assessment of the demeanour of those witnesses and the reliability, credibility and believability of their evidence. We consider that if his Honour had addressed the inconsistencies they were resolvable and it would have made no difference to the verdict.
72. The verdict of guilty was not unsafe or unsatisfactory, there was no wrong decision on a question of law, there were no material irregularities in the trial and no miscarriage of justice occurred. Therefore, the appeal must be dismissed and the conviction affirmed.
ORDER
73. By majority (Cannings J, Toliken J, Pitpit J & Lindsay J; Batari J dissenting):
(1) The appeal is dismissed.
(2) The conviction of the appellant on one count of wilful murder under s 299(1) of the Criminal Code is affirmed.
_________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent
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