Lus v State [2024] PGSC 106; SC2637 (27 September 2024)

SC2637

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 34, 35 and 36 OF 2016

BETWEEN:
BONNY LUS, ABRAHAM LUS, ISRAEL LUS, PAUL BOB AND AUGUSTINE MOROPA
-Appellants-

AND:
THE STATE
-Respondent-

Kokopo: Pitpit J, Liosi J & Dowa, J
2021: 25^th August
2024: 27^th September

APPEAL - CRIMINAL LAW – AGAINST CONVICTION – Appellants in the company of other young men assaulted two victims leading to their death-Victims were suspected of practising sorcery causing death of a relative-Appellants denied the allegations-trial judge found the appellants were part and parcel of the young men who assaulted the deceased persons leading to their eventual death-had common purpose and intent-Assessment of evidence based on credibility of witnesses and drawing inferences on proven facts- not satisfied that there is reason to doubt the safeness of the verdict-No identifiable error apparent on the face of the findings on conviction. Appeal dismissed.

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

References Cited
Section 299(1) of the Criminal Code (Ch. 262) (the Criminal Code).

Counsel
L Mamu, for the Appellants
P. Kaluwin, for the Respondent, the State

DECISION

27^th September 2024

1. BY THE COURT: The Appellants appeal against the National Court judgment delivered in Bialla, West New Britain Province on 23^rd of June 2016 in proceedings-CR 1427 to 1433 of 2014, whereby the Court convicted them of two counts of murder and sentenced them on the 25^th of June 2016 to 25 years and 20 years imprisonment to be served concurrently in hard labour less 9 months remand period.
   
2. The five appellants were charged along with two others with two counts of wilful murder under section 299(1) of the Criminal Code and the State invoked sections 7 and 8 of the Criminal Code as it alleged that they were principal offenders and acted in common purpose when they wilfully killed Minga Nema and Lende Minga, both deceased.
   

Background Facts

3. The appellants are residents of Vilelo Section 9, Block 1158, Bialla, West New Britain Province, although originally from Simbu and East Sepik Provinces. They were part and parcel of a group of young men who assaulted the deceased couple, Minga Nema and wife, Lende Minga, which resulted in their death.
   
4. The incident started because of a sorcery allegation against Lende Minga. It all began at the mourning place of one David Moropa at Kimbe town early July 2014. Late David Moropa died of an unknown cause. During the mourning, the appellant Augustin Moropa, observed Lende Minga performing rituals attributed to sorcery. The Moropa family attributed the cause of death to practice of sorcery by Lende Minga and planned to question her when they return to Bialla. Two weeks later, Lende Minga was then escorted by Augustin Moropa, Paul Bob and others in a Bus back to Bialla on the afternoon of 21^st July 2014. On arrival at Vilelo, she was taken to David Moropa’s Block at Vilelo Oil Palm settlement. She was then tied to a betel nut tree and assaulted. Not very long after the appellant Israel Lus and other young men escorted Minga Nema, the husband of Lende Minga to where Lende was. Both deceased were severely assaulted until they succumbed to their eventual death.
   

Hearing

5. At the hearing, the Court was informed that the appellants, Bonny Lus and Abraham Lus escaped. The Court held that both appellants waived their right to prosecute their appeal and thus dismissed their appeals. The Court proceeded to hear the appeals of the remaining appellants, Israel Lus, Paul Bob and Augustine Moropa.
   
6. We intend to deal with the appeals separately because although the grounds of appeal are identical, there are slight differences which can be best addressed individually.
   

LAW ON APPEAL AGAINST CONVICTION

7. Section 23 of the Supreme Court Act states explicitly that the Supreme Court will only allow an appeal 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 settled 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 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 consideration is given to the whole of the decision. See Pok v State (1983) PNGLR SC254 and Evertz v State (1979) PNGLR 174.
10. We will apply these principles when considering this appeal.

Israel Lus -SCRA No 34 of 2016

11. The appellant, Israel Lus, raised the following grounds of appeal.

(a) The convictions are unsafe and unsatisfactory in that the trial judge erred in facts and law in his findings that the Appellant was part and parcel of the group that assaulted and eventually caused the deaths of the two deceased persons when in fact evidence was lacking to support such findings.
(b) The convictions are unsafe and unsatisfactory in that the trial judge erred in facts and law by considering the inconsistent and inaccurate state of the State witnesses’ evidence which had reasonable doubts on the involvement of the Appellant and placing too much weight on the discredited evidence of the State to convict the appellant.

12. We will deal with the two grounds together as they are related. The main issue arising from the grounds of appeal is whether the trial judge erred in relying on inconsistent and discredited evidence of State witnesses in finding that the appellant was part and parcel of the group of young men that assaulted and eventually caused the deaths of the two deceased persons.

13. Counsel for the appellant submits the only evidence against the appellant, Israel Lus, was that he escorted Minga Nema to the place of interrogation, and he did not further participate in the assaults that eventually led to the death of the two persons. He submits the trial judge erred in holding that the appellant was part and parcel of the group that assaulted and eventually caused the death of the two deceased persons.

14. We have perused the transcript and note the direct evidence against the appellant, Israel Lus, came from State witnesses Rachel Minga, Doris Minga, Barnabas Goro and Chris Bona. They saw Israel Lus was amongst the young men that escorted Lende Minga to David Moropa’s block. Not long after, the State witnesses saw Israel Lus escorting Minga Nema with a hook knife to David Moropa’s Block where he (Minga Nema) was repeatedly assaulted and beaten to death. Chris Bona vehemently maintained his evidence that the two deceased were assaulted and beaten to death by the Moropa and Lus family and no one else.

15. The trial judge found that the appellant, Israel Lus and the other Lus brothers and the Moropa family were directly involved because they had the motive and the common purpose to harm the two persons which eventually led to their death. It is not disputed that the appellants are related by marriage. The appellant Paul Bob’s daughter is married to co-appellant Augustine Moropa. Abraham Lus, the brother of Israel Lus, is married to David Moropa’s daughter, the sister of Augustine Moropa. His Honour found the appellants accused the deceased of practicing sorcery causing the death of David Moropa. His Honour found the Appellants had the motive and the opportunity, as they were all present at the time of the beatings to avenge the death of their father, David Moropa. The trial judge considered the conduct and participation of the appellants from time of mourning to the time of the beatings of how they executed a plan to avenge the death of the David Moropa. The trial judge also took into account the conduct of the appellants even after the death of the two deceased in drawing inferences of guilt.

16. Although the Appellate Court has a duty to form its own opinion as to the proper inferences to be drawn from evidentiary facts, 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 of witnesses unless the trial judge has fundamentally misconceived the evidence. After giving due consideration to the whole of the decision we do not find any identifiable error. His Honour was entitled to draw inferences of guilt from the proven facts and the totality of evidence presented. We are not satisfied that there is in all the circumstances a reasonable doubt as to the safeness of the guilty verdict. For these reasons, the appeal shall be dismissed.

Paul Bob-SCRA No 35 of 2016

17. The appellant, Bob Paul, raised the following grounds of appeal:

(a) The convictions are unsafe and unsatisfactory in that the trial judge erred in facts and law in his findings that the Appellant was the leader who orchestrated and led the group of young men that assaulted and eventually caused the deaths of the two deceased persons when in fact evidence showed he was never at the place of the alleged beatings of the two deceased persons

(b) The convictions are unsafe and unsatisfactory in that the trial judge erred in facts and law by rejecting the Appellant’s evidence of withdrawal which was corroborated by a state witness that the Appellant left the scene when the beatings started and was with him and Appellant returned to the scene of the crime when the assaults and beatings on the deceased persons were over thus raising doubts on the Appellant’s involvement.

18. We will deal with the two grounds of appeal together. The main issue arising from the grounds of appeal is whether the trial judge erred in finding that the appellant, Paul Bob, hatched a plan and led a group of young men that assaulted and eventually caused the death of the two deceased persons.

19. We perused the transcript and note there is no direct evidence of Paul Bob inflicting any physical injury to the deceased persons. There is, however, other evidence pointing to his involvement. First, Paul Bob told State witness, Nicky Minga, on 6^th July 2014 at the place of mourning in Kimbe that he (Paul Bob) was going to lead an operation in Vilelo to establish the cause of death of David Moropa. This statement was apparently made after Augustine Moropa made observations on Lende Minga’s sorcery rituals at the mourning place. Next on 21^st July 2014, Paul Bob was seen, and it is not disputed that, he accompanied the Moropa brothers who escorted Lende Minga in a Bus owned by the Lus family to Vilelo, all the way to David Moropa’s block. On arrival at David Moropa’s block, Paul Bob was heard giving instructions, witnessed by State Witness, Chris Bona, to the young men to bring in Minga Nema to the place of interrogation which the appellant, Israel Lus, and one other person, Jonah Pius, carried out the task. At that time, another State witness, Barnabas Goro, also heard Paul Bob talking to someone on his Mobile phone saying, “we have the old woman already and we are going to go down and get the old man” and not very long afterwards, he saw the old man, Minga Nema, brought up to the scene. And finally, after a brief absence from the scene, the appellant, Paul Bob, was seen again at the crime scene when he was confronted by Nicky Minga with a demand for compensation.

21. The trial judge found that Paul Bob orchestrated a plan to make Lende Minga and her husband, Minga Nema, answerable for the death of David Moropa, whose cause of death was attributed to sorcery. The trial judge found the appellant was the oldest and leader of the young men who detained and escorted Lende Minga from Kimbe to Vilelo for interrogation on the sorcery allegations. His Honour found the Appellant was responsible for directing the young men to look for Minga Nema and to be brought to the place of interrogation. His Honour rejected the appellant’s evidence and submissions of withdrawal. His Honour found the appellant who is related to the Moropa family by marriage had the motive and the intent to initiate a plan of action and his presence at the scene of crime was to encourage or encouraged the young men to carry out the beatings which resulted in the eventual death of the two deceased persons. His Honour also found that the subsequent conduct of the appellant in trying to escape the crime scene with the young men involved in the assault was indicative of a participant rather than a withdrawer.

22. After considering the evidentiary facts, the findings of the trial judge, and submissions of counsel, we have determined that the trial judge’s decision be given proper weight. This is because the trial judge was in a better position to observe the demeanor of witnesses, assess credibility, weigh the evidence and to draw inferences from proven facts. In our view there was sufficient circumstantial evidence from which the trial judge could reasonably draw inferences of guilt of the appellant. We are not satisfied that there is in all the circumstances a reasonable doubt as to the safeness of the verdict. We find no identifiable error in the findings and the decision of the trial judge. We will therefore dismiss the appeal.

Augustine Moropa-SCRA No 36 of 2016

23. The appellant, Augustin Moropa, raised the following ground of appeal.

(a) The convictions are unsafe and unsatisfactory in that the trial judge erred in facts and law in his findings that the Appellant was part and parcel of the group that assaulted and eventually caused the deaths of the two deceased persons when in fact there was no iota of evidence from the prosecution’s evidence implicating the Appellant and to support such a finding against the Appellant.

24. The main issue for consideration raised by ground of appeal is whether the trial judge erred in finding that the appellant was part and parcel of the group of young men that assaulted and eventually caused the deaths of the two deceased persons.

25. Counsel for the Appellant submits the only evidence against the appellant, Augustine Moropa, came from one Chris Bona who randomly identified the appellant in the dock as being involved. Mr Bona’s evidence at the crime scene was that the Moropa and Lus family members assaulted the deceased without giving any names and details of their involvement.

26. We note the evidence against the appellant, Augustin Moropa, is circumstantial. Augustine Moropa started a tale of observing Lende Minga performing a sorcery ritual at the mourning place in Kimbe about two weeks earlier which sparked off the sorcery suspicions against Lende Minga. Lende Minga was then detained and escorted by the Moropa siblings including Augustin Moropa to Vilelo Settlement, Bialla. Lende Minga was guarded and escorted by Augustin Moropa to the place of interrogation at the Moropa Block where the beatings took place. A State witness, Chris Bona, testified that he watched at a close range and saw the Moropa and Lus family were assaulting the two deceased persons. Although Mr. Bona did not name them, he vehemently maintained his testimony that the Moropa and Lus family were mainly responsible to the exclusion of others for the assault and the eventual death of the two deceased persons.

27. The trial judge found Augustin Moropa and the other appellants, all related by marriage, had the motive to assault the deceased persons to avenge the death of their relative, David Moropa, whose death, they suspected was caused by sorcery performed by the deceased. The appellant, Augustin Moropa, along with the other appellants were present during the beatings and have each played a role in the common purpose of assaulting the two deceased which resulted in their death. The trial judge rejected the unsworn evidence of the appellant, Augustin Moropa, as lies. He accepted the State witness evidence of Chris Bona, Rachel Minga, Nicky Minga and others as truthful that the Moropa and Lus family were directly involved in causing the death of the two deceased persons.

28. Although it is open to this Court to form its own opinion as to the proper inferences to be drawn from the evidentiary facts, we are reluctant to disturb the trial judge’s findings of fact and findings as to credibility of witnesses. The trial judge was in a better position to observe the demeanor of witnesses and asses their credibility. There was sufficient circumstantial evidence based on proven facts before the trial judge to reach the decision he did. In the circumstances we must give proper weight to the decision of the trial judge as there is nothing to show that the trial judge has fundamentally misconceived the evidence. After giving due consideration to the whole of the decision, we do not find any identifiable error nor any reasonable doubt as to the safeness of the verdict. The appeal shall therefore be dismissed.

Conclusion

29. In the end we find no identifiable error in the findings and the decision of the trial judge in convicting the three appellants. We will therefore dismiss all three appeals filed by the appellants.

Orders

30. The Court orders that:

1. The appeal against conviction by Israel Lus in SCRA No 34 of 2016 is dismissed.

2. The appeal against conviction by Paul Bob in SCRA No 35 of 2016 is dismissed.

3. The appeal against conviction by Augustin Moropa in SCRA No 36 of 2016 is dismissed.
   

Public Solicitor: Lawyers for the Appellants
Public Prosecutor: Lawyers for the Respondent