SC2730
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA 13 OF 2023

BETWEEN:
PATRICK SUMA
Appellant

AND:
THE STATE
Respondent

WAIGANI: MOGISH J, MANUHU J, GEITA J
30 APRIL, 2 MAY 2025

SUPREME COURT – Appeal against conviction – Contradictory evidence – Absence of ballistic evidence – Trial judge was in a better position to weigh the evidence and make findings of fact.

Cases cited
John Beng v The State [1977] PNGLR 115
Ambrose Lati v The State (2015) SC1413
Balbal v The State [2007] SC860

Counsel
F. Kuvi, for the appellant
J. Tugah, for the respondent

1.      BY THE COURT: The Appellant, a police officer, was found guilty of murder after a trial and was sentenced to 18 years in hard labour.  This is his appeal against conviction only.
2.      On an appeal against conviction, the Supreme Court shall allow the appeal where the verdict is unsafe and unsatisfactory; the conviction was based on a wrong decision on a question of law; or where there was a material irregularity in the course of the trial: s. 23 (1) of the Supreme Court Act. See John Beng v The State [1977] PNGLR 115 and Ambrose Lati v The State (2015) SC 1413.
3.      It was alleged that on a Sunday afternoon, at Turubu Oil Palm Estate, Wewak, East Sepik Province, the deceased was with others fixing a motor vehicle when a fight broke out between people who were playing volleyball. The deceased went to see the fight. The Appellant, who was engaged to provide security for the oil palm company, confronted the Appellant. He was shot and killed moments later by the Appellant at the back of a house between 6.00pm and 7.00pm.
4.     The Appellant argued firstly that the trial judge erred in convicting upon contradictory identification evidence of three State witnesses.  It was secondly argued that the trial judge erred in convicting the appellant when there was no ballistic evidence linking the firearm to the fatal injury.
5.     The first argument was made by defence counsel before the trial judge. At page 54 of the Appeal Book, it was submitted that Hazel Bina’s evidence contradicted the evidence of Ronald Bina.  Hazel Bina said she followed the Appellant who was pursuing the deceased to the back of the house where she saw the Appellant shot the deceased with a gun.  On the other hand, Ronald Bina said that at the relevant point in time, he and Hazel Bina were in the kitchen, and she did not go anywhere.  
6.     The trial judge’s discussion of the evidence is in pages 160 to 165.  On page 166, the trial judge set out the disputed and undisputed facts.  The trial judge then analysed the evidence and accepted the evidence of the State witnesses.  In relation to the contradiction in Hazel Bina’s evidence, at page 169, the trial judge addressed it, thus:
“The Defence’s submission questioning the credibility of evidence by the state witnesses and asserting that they were contradicting, however does not outweigh the entirety of the evidence establishing the identification and the fire of the gunshot which caused the death of the deceased. Further, the Defence’s submission that ...Hazel Bina was inside the kitchen and had not gone out or seen the accused assaulting and shooting the deceased but only heard gun shots is technically incorrect, given her evidence that she came out of the kitchen before the accused assaulted the deceased. During examination in chief, she clearly said that she left the kitchen and went out to see who was firing the gunshots and recognized the accused assaulting her ‘small’ father (deceased) which caused her to cry, even more, the accused cursed her saying profane words. Nevertheless, she gave evidence confidently that she followed the accused, some metres behind and saw the accused pulling down his gun and shooting the deceased...(sic.)” (Our underlining)
7.     The trial judge eventually found that the “identification of the accused is established with credible evidence.”
8.     We are of the view that the trial judge did consider the contradiction and accepted the evidence of Hazel Bina who identified the Appellant as the killer.  He was in a better position to weigh the evidence and make the appropriate findings of fact as he had so done. See for example Balbal v The State [2007] SC860.
9.     Accordingly, the first argument is without merit.
10.     In relation to the argument on absence of ballistic evidence, no case authority was cited by the Appellant.  The trial judge considered the issue adequately in four paragraphs on page 170, where he said:
“...the essence of this issue boils down to the person who actually entered into the yard, and walked further into the kitchen area, and fired the third gun shot.  There is no other evidence from Defence supporting that there were other armed policemen inside the property, except the accused.”

11.     The trial judge concluded that the argument on the absence of ballistic evidence “does not hold water.”
12.     Consistently, according to the medical evidence, “the Autopsy Finding seen at the time of Autopsy showed no evidence of any medical condition that is likely to cause the death of this man except the evidence of a gunshot wound totally ripping off the muscles in the biceps region of the left arm destroying the blood vessels and the nerves in the axillar region.”
13.     In all the circumstances, it was open to the trial judge to conclude that ballistic evidence is not necessary. Hazel Bina’s evidence was corroborated by the medical evidence.  The second argument also fails on that basis. 
14.     We are, ultimately, of the view that the appeal lacks merit and should be dismissed. We so order.
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Lawyers for the appellant:  Kuvi & Associates
Lawyer for the Respondent: Acting Public Prosecutor