Piakali v State [2004] PNGLR 52; [2004] PNGLR 145 (13 December 2004)

SUPREME COURT OF JUSTICE

MASOLYAU PIAKALI

V

THE STATE

MT. HAGEN: SEVUA, KANDAKASI, LENALIA JJ

30 March; 13 December 2004

APPEAL – Appeal against conviction and sentence – Principles governing – Issue for trial - Identification – Eye witnesses identifying appellant at scene and identification parade - Not a fleeting glance – Quality of evidence good – Principles governing identification evidence – Trial judge correctly considered and applied them – No identifiable error demonstrated – Appeal dismissed.

CRIMINAL LAW – PRACTICE & PROCEDURE – Handing in of accused by community leaders – Good practice – Evidence of community taking responsibility for law and order – Need to encourage the practice - Evidence of admissible – Effect of such evidence – Presumption in favour of accused being the offender – Onus on accused to demonstrate by credible evidence error in community leader's identification of him as the offender.

CRIMINAL LAW – PRACTICE & PROCEDURE – Presentation of indictments – Authorised officers – Public Prosecutor and State Prosecutors – Presentation of indictment by a lawyer in the employ of the Public Prosecutor's office but not a State Prosecutor – Presumption in favour of power or authority to present – Onus on accused to rebut upon presentation of indictment – Failure to object at appropriate stage and in the Court below – Change in role of relevant officer from public prosecutor lawyer to pubic solicitor lawyer after conviction and trial – Issue raised after conviction and sentence and change in officer concerns status from prosecutor to defender – Appellant precluded from raising and succeeding on matter not raised in the trial court – Criminal Code ss. 524 and 525.

Facts

A lawyer in the employ of the Public Prosecutor's office employed as a prosecutor but not gazetted as a "State Prosecutor" presented three separate indictments against the appellant and others charging them with three separate counts of wilful murder. The appellant took no issue on the propriety of the presentation of the indictments, and a long trial followed ending up with the appellant's conviction and sentence of life imprisonment. Following that conviction and sentence, the lawyer who prosecuted the appellant left the employ of the Public Prosecutor and joined the Public Solicitor's office. Meanwhile, the appellant lodged an appeal against his conviction claiming that the evidence which came mainly from eyewitnesses, identifying him, was not good and was therefore unsafe to convict him. That was despite his community leaders rounding him and his co-accused up and handing them over to the police. Prior to the hearing of the appeal, the appellant added with leave of the court the additional ground of the indictments charging him were defective because the prosecutor was not a gazetted prosecutor within the meaning of ss.524 and 225 (1) (a) (b) and (2) of the Criminal Code.

Held

1. Unless objection is taken and there is evidence to the contrary, there is a presumption in favour of a lawyer in the employ of the Public Prosecutor's Office having the necessary power and authority to present indictments against an accused person before the National Court, for the purposes of s.524, 525 and 256 of the Criminal Code.

2. All objections to the competency of an indictment must be taken upon the presentation of an indictment and a failure to do so amounts to an acceptance as to the correctness of the indictment.

3. An appellant who has failed to raise an issue or point in the trial Court including, an objection to the competency of an indictment is precluded by his own failure from raising it on appeal, particularly after his trial, conviction and sentence.

4. In the present case, the appellant did not raise the issue of the competency of the indictments against him in the court below. As such, he is precluded from raising it on appeal.

5. The Supreme Court ought not to interfere with the decision of a sentencing judge where an appellant fails to demonstrate an error or errors on the part of the trial judge.

6. The appellant has failed to demonstrate an error or errors on part of the trial judge.

7. The Courts must and ought to give due weight and consideration to the practice of handing over of suspects by community leaders in order to encourage the communities involvement in the task of improving law and order. The exception is when a person affected by such a practice demonstrates by appropriate evidence that, the village leaders acted without any evidence pointing to the involvement of the person concerned, and or his commission of the offence.

8. The appellant in the present case did not demonstrate by appropriate evidence that his village leaders handed him over to police as one of those involved without any evidence pointing to his involvement and or commission of the offences. Further, the appellant did not demonstrate and establish that the learned trial judge erred in acting on the actions of the village leaders which was supported by evidence adduced in Court.

9. The learned trial judge correctly applied the principles governing identification evidence and acted on good identification evidence, and therefore committed no identifiable error warranting the Supreme Court's intervention.

10. For the foregoing reasons, the appeal against conviction and sentence is dismissed with the sentence of life imprisonment confirmed.

Papua New Guinea cases cited

David Colye & 2Ors v Loani Henao (30/11/00) SC655.
Fly River Provincial Government v Pioneer Health Services Limited (24/03/03) SC705.
In the matter of The State v The Principal Magistrate, District Court Port Moresby, Ex Parte The Public Prosecutor [1983] PNGLR 43.
Jimmy Ono v The State (04/10/02) SC698.
Kepa Wanege v The State (01/04/04) SC742.
Nelson N. Ngasele v. The State (03/10/03) SC731.
Peter Kirin & KK Farmers v. John Paroda (27/08/04) N2599.
Public Prosecutor (Office and Functions) Act of 1980.
SCR No.1 of 1978 (s.19) [1978] PNGLR. 345.
Smedley v The State [1980] PNGLR. 379.
State v Anis Noki [1993] PNGLR 426, at 427.
The State v Esorom Buruge (No.1) [1992] PNGLR 481.
The State v Moki Lepi (2002) PNGLR 447.
The State v Murray William & 2 Ors. (No 1) (28/04/04) N2556.
The State v Pawa Kombea [1997] PNGLR 495.
The State v Roger Kivini (29/04/04) N2576.
The State v Tony Pandau Hahuahori (19/02/02) N2185.
William Norris v The State [1979] PNGLR 605.

Other cases cited

CFR v Parker (1977) V.R.22.
R v Bright and Others (1980) QD. 12 490.

Counsel

B Aipe, for the appellant.
R Auka, for the respondent.

13 December 2004

By the court. The appellant is appealing against both his conviction and sentence of life imprisonment for wilful murder after a long trial in the National Court sitting in both Goroka and Mt. Hagen on three counts of wilful murder contrary to s. 299 of the Criminal Code.

In his original notice of appeal, the appellant pleaded his grounds of appeal as follows:

"1. I have denied because I was not involved in the scene.

2. Above judge put some points as reasons for decisions which was injustice or unlawful decision made.

3. Motivation (motive?) of appeal you refer to the information attached here-to.

4. I have denied because I was not involved in the scene (Conviction)

5. Motivation (motive?) of appeal you refer to the information attached here-off.

6. Above judge put some points as reasons for decision which was injustice or unlawful decision made.

7. The accused and suspects surrendered to police – Bokom Tabai escaped and warrant of arrest. All other pleaded not guilty.

8. Police station I.D parade was not conducted properly. We the suspect were not put in line with the other mission mates. We the suspects were easily identified because we looked different altogether from the outsiders.

9. Surrendered to police and suspects have been given to the police not in sense. We were advised by the Community to talk to police to stop police from raiding the whole community. I was further advised that I with others would be released 3 – 4 days in custody.

10. The unfair – Life Sentence – Court Decision Made By The National Court. National Court Unfair Decision – Appeal Before The Supreme Court.

Application For Court Appeal Upon Following Motivations.

11. I was not given time to make my cross examination against the state witnesses due to it was a denied case.

12. The Natural Judge did not attached/include the Medical reports (Certificates), post mortem results and so on.

13. The judge used his own thoughts and feelings, confirmed the brutal killing of the Kende family was up on payback, which was not mentioned by either the state witnesses. No one of us (suspects) when giving evidence or even breaching the Court".

It is difficult to tell what exactly the appellant's grounds of appeal are. Nevertheless, these purported grounds of appeal could come under five broad categories. Firstly, is the appellant's claim that, he was not involved in the commission of the offences. Secondly, some points or reasons the learned trial judge relied on to arrive at his decision were unlawful and unjust, in that the learned trial judge did not give him an opportunity to cross-examine the eyewitnesses, and there was a lack of medical evidence. Further, the learned trial judge used his own thoughts and feelings without the support of any evidence to arrive at his conclusion that the commission of the offences was in payback. Thirdly, the suspects surrendered to police conditional on release within 3 to 4 days later which action was to avoid police raiding their community. Fourthly, the identification parade conducted by police was not proper in that they were easily identifiable out of others in the parade. Finally, the sentence of life imprisonment is unfair.

The law requires an appellant to specify his grounds of appeal with sufficient particulars. In our view, Kandakasi J correctly discussed the legal position on that, in his recent judgment in Peter Kirin & KK Farmers v. John Paroda (27/08/04) N2599, at pp. 4-5 in these terms:

"The appeal process is there not to enable an aggrieved party to have a ... rehearing of the whole case after a court of competent jurisdiction has dealt with the matter on its merits. A decision after that process resolves and should resolve the matters in dispute between the parties subject to an aggrieved party's right of appeal on very good grounds or reasons. The process is therefore, there to enable a party, which has a genuine and meritorious ground to challenge the decision of the Court below. It is thus necessary for such a party to specify with sufficient particulars the grounds or reasons for his appeal. This would enable the opposing party to know at the outset the basis for the appeal, prepare, and present his or her response or where possible, consent to the relief sought. At the same time, it enables the appellate Court to know of the basis for the appeal and determine whether it is meritorious or not.

...

It follows therefore that, where a purported ground of appeal is too general and not specific on the real basis for the appeal, it stands the risk of a strike out or dismissal for not disclosing a reasonable ground of appeal."

Before stating the above principles, His Honour had regard to the provisions of O.7 r 8 (c) of the Supreme Court Rules and the case law on it, namely, David Colye & 2Ors v. Loani Henao (30/11/00) SC655. All of these effectively say that it is not sufficient to allege in a notice of appeal that the learned trial judge misdirected himself and or went against the weight of the evidence, or arrived at a judgment which is wrong in law. An appellant must do more than that. He or she must provide particulars and demonstrate where or how the learned trial judge misdirected himself, or went against the weight of the evidence or is wrong in law. It is not for the appellate Court to enter into a knit picking exercise to pick out all possible errors.

In the case before us, the purported grounds of appeal fail to specify a particular error, omission or a misdirection on the part of the learned trial judge and demonstrate where and how that might be the case. We could therefore easily dismiss the appeal on this ground. Nevertheless, we propose to consider the matters vaguely mentioned in the ground of appeal, given the seriousness of the case.

Before we do that, we note that just before the hearing of the appeal, the appellant applied for and the Court granted the appellant leave to add an additional ground of appeal. That ground was effectively that the indictments charging the appellant and the eventual trial, conviction and sentence thereupon were defective by reason of the person who presented the indictments not being a gazetted "State Prosecutor" within the meaning of ss.524 (2), 525 and 526 of the Criminal Code.

Presentation of Indictment

We deal firstly with the last ground of appeal added with leave of the Court. The essence of this ground of appeal is that, the prosecutor in the case, Mr. Peter Kumo who presented the indictment at the trial, was not a gazetted State Prosecutor. The State does not dispute this fact in the light of Mr. Kumo, who has since joined the Public Solicitors Office, which is pursuing this appeal, deposed to an affidavit admitting that fact. Based on that fact, Mr. Aipe, counsel for the appellant, argues that Mr. Kumo who signed and presented the indictment was not authorised to present the indictment for the purposes of ss. 542, 525 and 526 of the Criminal Code. He argues therefore that, the indictment was defective. Consequently, Mr. Aipe argues that the prosecution, conviction and sentence of the appellant were also defective and unlawful. As such, he submits this Court must set aside the conviction and sentence.

Sections 542, 525 and 526 of the Code in so far as they are relevant read as follows:

"524. Procedure: Preliminary.

(1) No indictment may be presented in the National Court except in accordance with Sections 525 and 526.

(2) The Head of State, acting on advice, may appoint lawyers to be State Prosecutors.

(3) The Public Prosecutor is, ex officio, a State Prosecutor

...

525. Procedure for indictment.

(1) ...

(2) An indictment may be presented to the National Court by the Public Prosecutor or any State Prosecutor.

...

526. Indictment without committal.

(1) ...

(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor."

There is no dispute that, essentially, Mr. Kumo was a State Prosecutor and has acted in that capacity since 1993, but for the formalities of his gazettal as a State Prosecutor. His gazettal came on 11 August in 1997.

Section 176 of the Constitution establishes the offices of the Public Prosecutor and Public Solicitor. The next provision, s.177 (1) (a) (b) defines the functions of the Public Prosecutor. Section 4 of the Public Prosecutor (Office and Functions) Act elaborates on those functions. In summary, these functions are to "control", "exercise" and perform prosecutorial functions of the people through the State against persons charged with criminal and other offences in the National Court and appear for the State in appeals in the Supreme Court. The Public Prosecutor's Office initiates prosecutions and decides on discontinuance according to his own assessment of all evidence before him: ss.534, 525 (1)(a)(b)(2)(3)(a)(b) and (c) and s.526 of the Code. It performs this function independently of any other person's direction or control: SCR No.1 of 1978 (s.19) [1978] PNGLR 345 and Smedley v. The State [1980] PNGLR 379.

Mr. Aipe referred this Court to a number of local authorities and one Australian case, which deal with the authority to present indictments. Mr. Aipe, of counsel for the appellant referred us to the judgments in In the matter of The State v. The Principal Magistrate, District Court Port Moresby, Ex Parte The Public Prosecutor [1983] PNGLR 43, The State v. Esorom Buruge (No.1) [1992] PNGLR 481 and The State v. Pawa Kombea [1997] PNGLR 495.

The first of these cases are distinguishable from the present case. There, the Public Prosecutor made an application to the National Court for an order nisi for a writ of certiorari to remove the matter, out of the Magistrate's Court and to quash the conviction on the grounds of lack of jurisdiction. Hence, that case concerned the jurisdiction of the Magistrate's Court and not the authority for the presentation of the relevant indictment.

The cases of The State v. Esorom Buruge (No.1) (supra) and The State v. Pawa Kombea (supra) would appear to be on point but on closer examination they are distinguishable on the issue before us. In the first of these two cases, counsel for the defence applied to the District Court in Rabaul for a strike out of the information against his client on grounds of being defective. The District Court ordered the information to be withdrawn, corrected and presented again because of some defects that needed corrections. Thereafter, the Public Prosecutor sought to present the same indictment, which the defence objected on the basis that there was no decision of the District Court which was a prerequisite for an ex officio indictment (s.526(1)) and that a State Prosecutor and not the Public Prosecutor signed it. The Court held in those circumstances that the signing of the indictment by the prosecutor was ultra vires s.526 (1) of the Code and that it amounted to an abuse of the process as only the Public Prosecutor could do that and only where there is a refusal to commit.

In the later case, a member of this Court (Lenalia, J.) while an acting judge, followed the Esorom Burege case (supra). In the case before his Honour, a State Prosecutor had signed and presented an ex officio indictment under s.526 (1) (2) of the Code. His Honour held that the indictment was defective.

In the case before us, Mr. Aipe, counsel for the appellant, argued that the proper authority to sign and present an indictment by a State Prosecutor must exist at the time of the presentation of the indictment in Court. To support that proposition, he referred us to the case of CFR v. Parker [1977] VicRp 3; (1977) V.R. 22. There, the Court held that the trial of an accused was a nullity because the presentation of the indictment was without proper authority. That was because of the prosecutor being elevated to the bench because of which, he could not prosecute. The Court per Murphy J. at 42 said:

"It appears to me to be quite clear that once presentment is made anyone may take up the prosecution in the Court. I have made enquiries as to the practice followed by prosecutors in the matter of presentments. It would appear that time honoured practice accords with the view of the meaning of s.353 [the equivalent of our ss.525 (1) and 526 (2)], which I have formed and stated above. The practice is, that if one of their member retires, or resigns, or dies, or is elevated to the bench all presentments signed by such a prosecutor are recalled if they are not yet filed. I may say that I see no compelling reason why presentment are not filed in the Court on the first day of the sittings to which a person has been committed. This would avoid problems such as that with which we are here concerned for once a presentment is filed, the same consideration no longer apply. Presentment has been made and the Crown prosecutes."

We are of the view that this also represent the current position of the law on the presentation of indictments in Papua New Guinea. The cases counsel for the appellant has drawn to our attention, proceed along those lines. Nevertheless, the precise circumstances in which the issue arose in the cases discussed above are different from the present case. Here, the issue arise from the very outset of drafting the indictment and presenting it by a person not gazetted as a State Prosecutor, but a lawyer within the employ of the Public Prosecutor's office performing prosecutorial functions. It is also a case where the appellant did not take the relevant objection at the time of its presentation).

Counsel for the respondent, Mr. Auka, drew our attention to the provisions of s.4 (1) (e) of the Public Prosecutor (Office and Functions) Act of 1980 and submitted that, it is not mandatory that only the Public Prosecutor should present indictments for the purposes of s. 535 (2) of the Criminal Code. After granting the Public Prosecutor control over the office of the Public Prosecutor and the power to prosecute, the provision in question, reads:

"(e) shall provide Counsel—

(i) to prosecute persons charged with any criminal offence at their trial before the National Court; and

(ii) to appear on behalf of the State in any criminal appeal before the National or Supreme Court; and

(iii) to appear before the National Court or Supreme Court in any proceeding relating to a criminal matter in which the State has an interest; and..."

It seems clear to us therefore that it is not entirely correct to say that the Public Prosecutor is the only person authorised to present indictments and perform his duties and responsibilities. This provision makes it clear that the Public Prosecutor can discharge his responsibilities through counsel who could "prosecute persons charged with any criminal offence at their trial before the National Court" or "appear on behalf of the State in any criminal appeal before the National or Supreme Court" or "appear before the National Court or Supreme Court in any proceeding relating to a criminal matter in which the State has an interest".

Section 525 (1)(a) and (b) re-emphasise the point that, the Public Prosecutor is not the sole actor in the performance and discharge of his duties. This provision also authorises State Prosecutors to write out and present indictments charging an accused person. The position is further strengthened by sections 616 of the Criminal Code and s. 4 (1) (g) of the Public Prosecutor's Act. The first of these two provisions empowers persons other than the Public Prosecutor or a State Prosecutor to present information (serves the same purpose as an indictment) against an offender with leave of the Court. The later provision grants the Public Prosecutor discretion to consent or not to consent to prosecutions by persons other than through his office. There is no requirement, in both of these provisions as well as s.4 (1) (e) of the Public Prosecutor's Act, for the Public Prosecutor or a State Prosecutor to draft, sign and then present an indictment or information. Persons other than the Public Prosecutor are simply authorised in those circumstances subject to the conditions specified in those provisions to perform the criminal prosecutorial functions of the Public Prosecutor.

When one views these legislative scheme closely, the intention of Parliament behind these provisions is clear. Only the Public Prosecutor and his State Prosecutors have the sole authority to decide whether to proceed against a person who commits an indictable offence. The Public Prosecutor is not subject to any direction or control from anyone when it comes to the exercise of his powers and functions: Nelson N. Ngasele v. The State (03/10/03) SC731. No other person can take out criminal proceedings before the National Court, except with leave of the Court in appropriate cases and where the Public Prosecutor directs or consents. This, in our view, is for the protection of people in the country from abusive, malicious and unauthorised prosecutions by persons acting independently of the office of the Public Prosecutor. Hence, in our view, it is not the intent of the legislature to prevent the Public Prosecutor from carrying out its duties and responsibilities on behalf of the people of Papua New Guinea. Instead, the legislature authorised the Public Prosecutor to engage counsel in addition to State Prosecutors and consent to private prosecutions in appropriate cases to assist in the prosecution of criminal cases.

It follows therefore, that, where the Public Prosecutor engages a counsel under s.4 (1) (e) of the Public Prosecutor's Act or consents to a private prosecution under s. 4(1)(g) of the same Act, he consents to an indictment being presented by a person other than himself or a State Prosecutor. Similarly, where the National Court grants leave to a person other than the Public prosecutor or a State Prosecutor to present an information under s. 616 of the Criminal Code, the Court is authorising that person to draft, sign and present the information (indictment). Consequently, we are of the view that, lawyers in the employ of the Public Prosecutor, whom the Public Prosecutor authorises or allows to prosecute in criminal cases before the National Court, would presumably have the necessary authority to present the indictment in accordance with the requirements of ss. 524, 525 and 526 of the Code.

The view we have just expressed found acceptance in the case of R v. Bright and Others (1980) QD. 12 490, drawn to our attention by Mr. Auka of Counsel for the respondent. There, the Court held inter alia that a:

"[C]ounsel who is briefed for the Crown and who holds no commission pursuant to s.69 (1) of the (Commonwealth) Judiciary Act 1903-1973 is entitled to present to the Court an indictment which is in the form required by that section and to undertake the prosecution at the trial".

Thus in the context of our case, if for whatever reason the person presenting an indictment before the National Court in a particular case does not have the necessary authority, then it is incumbent on the defence to take the appropriate objection at the very outset of the trial. Indeed, s.534 of the Criminal code grants a right in a defendant to raise any objection he might have in relation to an indictment presented against him. At the same time it provides that no formal defect shall defeat the indictment. Then the next section, s.535, provides for amendments to indictments even after a trial. This highlights the fact that if there are any defects or problems with the presentation of any indictment the defence must raise the issue at the earliest for correction, if that can be done without any prejudice to the defence: see The State v. Murray William & 2 Ors. (No 1) (28/04/04) N2556 and The State v. Moki Lepi (30/04/02) N2264. A failure to act quickly by the defence can be detrimental to him because the question of prejudice to the State also applies.

Recently, in The State v. Roger Kivini (29/04/04) N2576, a member of this Court (Kandakasi J.) declined to re-visit the presentation of an indictment for wilful murder against the defendant. There, the defence counsel again the same, Mr. Kumo claimed that the indictment presented against his client was not one he and the prosecutor agreed would be presented. He, however, failed to take issue with the presentation of the indictment until at submission. In arriving at his decision, his Honour said:

"The fact that you through your lawyer did not take issue with the indictment at the time of its presentation, the arraignment, the taking of your plea also influenced the Court to arrive at that decision. In arriving at that view, I noted that the failure to take any objection at any of these stages meant that there was nothing wrong with the presentation of the indictment and all that happened based on it."

We agree with his Honour's view that where an accused fails to take issue with the presentation of an indictment against him soon upon its presentation or before a trial is seriously under way and, in any case, before a decision on his verdict, means the indictment is in order. The reason for this is simple. It would be prejudicial in terms of costs, availability and convenience of witnesses, their evidence and the fairness of a trial if the Court were to readily abort a trial that has seriously commenced, and more so if the trial ended with a decision on the verdict and sentence.

In the case before us, the trial took several weeks in Goroka with the decision on sentence in Mt. Hagen. The National Court delivered its decision on verdict on 23 December1996 and its decision on sentence on 24 March 1997. We heard the appeal on 30 March 2004 and the arguments on the validity of the indictment. This saw a passage of more than 6 years. There is no evidence before us as to the whereabouts of the witnesses and their availability to give evidence over the same incident if the matter were to go for a retrial. Additionally, there is no evidence that the witnesses memory, and the cogency and the consistency of their evidence are intact despite the long period of time that has lapsed. Simply put, there is no evidence that if the appellant succeeds on the issue of the competency, there will be no prejudice to the State.

Further, there is no issue that the appellant, through counsel, did not raise this issue before the learned trial judge. Hence, the appellant is raising the issue for the first time in this Court on appeal. There are numerous authorities for the proposition that unless an appellant raised an issue in the Court below, he cannot raise it on appeal and succeed. The case of Fly River Provincial Government v. Pioneer Health Services Limited (24/03/03) SC705, relied on by the respondent is authority for that proposition in the context of a civil appeal. In the case of a criminal appeal, this Court's own judgement delivered on 01/04/04 in Kepa Wanege v. The State, SC742 is authority for that proposition.

The rationale behind this principle is that in fairness to the opposing party and also to the learned trial judge, the party concerned should raise in the Court below all relevant and necessary issues so that they can be appropriately addressed before they become an issue for appeal. After all, appeals concern alleged errors of the Court below on matters fairly put to it, and not something not put before that Court. Allowing an appeal on a point not raised at the trial level is in fact allowing a party to succeed out of his own failure independent of the Court below and the opposing party's fault. There can certainly be no argument that, this would be most unfair and would operate against all norms of fairness and justice and the concept and right of appeal.

This principle also safeguards against a person having failed to put up all the defence or arguments open to him at trial from raising them once a decision goes against him. Such a conduct is an affront to the public policy dictate that there be finality in litigation. The principle operates therefore, to prevent a party from succeeding from his own failure after his litigation has reach finality, subject only to appeal on issues properly raised. We consider this principle very important in our justice system and that it should be readily upheld.

For these reasons, we are of the view that there is no merit on the issue of competency of the indictment, belatedly raised by the appellant. Accordingly, we order a dismissal of this ground of the appeal.

Remaining Grounds of Appeal

This now leads us to a consideration of the remaining grounds of appeal. The appellant's vague claims in his purported grounds of appeal, all centre around the issue of his identification, which was the main issue for trial. We therefore consider it convenient that we should consider the remaining grounds in the context of that main issue.

This case concerned a brutal killing of an Engan family on Friday 20 January, 1995. A Leo Kende, his wife Lau Kende, their son Geoffrey Kende who were travelling with others along the Wabag and Mt. Hagen portion of the Okuk Highway heading for Lae in a Ford utility ("utility") were ambushed and killed in what appeared to the trial judge as a payback killing. According to the transcript of evidence, an eyewitness, a Helen Pomakali, then a student at the Lae University of Technology, who travelled with the deceased gave evidence of what happened at the scene of the killings.

Her evidence in chief was that, she was one of the passengers on the utility motor vehicle driven by the late Leo Kende. They left Wabag town on the fateful day and headed for Lae on the Okuk Highway. They passed a bridge just outside Wabag town and as they did, the deceased told the passengers including, the witness that, there was a roadblock ahead of them. The roadblock was set up near the cemetery of an Engan student killed in Lae allegedly by the relatives of late Leo Kende.

Soon upon sighting and getting closer to where the roadblock was, the deceased stopped to reverse in order for him to turn and drive back to Wabag. Whilst he was in the process of doing that, one of those setting up the roadblock shot the deceased on his shoulder. Not long after, about twenty men appeared from both sides of the road armed with axes, bush knives and guns and they fully surrounded the utility with the deceased and the others on board. The next thing the witness saw was a smashing of the utility's windscreen on the driver's side. She then saw a dark, tall and skinny man firing a shot from a gun at the deceased, Leo Kende which got the deceased right on his head killing him instantly.

Shocked with what was happening, the second deceased and wife of Leo Kende, Mrs. Lau Kende, screamed at the top of her voice for help, which did not come. Meanwhile, the armed men proceeded to open the driver's side door to the utility and they commenced chopping the deceased Leo Kende into pieces by using the axes and bush knives they carried. At this time, Lau Kende and her son Geoffrey Kende were still in the cabin of the utility. A number of the armed men came to the crew side of the utility and one of them fired a gun at Lau Kende's head. As she was desperately fighting for her life, some more of the armed men went to where she was and chopped her into pieces as well by using axes and bush knives. By this time, the only surviving member of the family was the son of the two deceased, Geoffrey Kende. Some of the men pulled the little boy out from the cabin, led him away a little distance from the vehicle and also killed him.

Other witnesses called by the State supported the account given by this witness. This witness clearly identified the appellant as one of the attackers she saw. She gave evidence of specific other acts of the appellant at the scene of the killings. She testified of the appellant attacking a Pauline, who was a passenger in the utility with her. She also saw the appellant bend down to pick a stone when the deceased Leo Kende was making a U-turn. Another witness, John Yom, identified the accused in the accused box in Court by pointing to him out as one of the persons he saw at the scene. Apart from identifying, the appellant, John Yom also identified two of the appellant's co-accused, Yaputi Pindau and Yau Yaupae.

Another witness, a Mary Lakau called as the State's fourth witness, who was also a passenger in the utility at the relevant time corroborated Helen's testimony and identified the appellant at the scene from a very close range as one also involved in the killings in cold blood. This witness also identified the appellant from within a very close range acting with one of his other co-suspect, Tambi on the side of the vehicle where the deceased Leo Kende was attacked.

Hence, there were eyewitness accounts given by three eyewitnesses, supported by other evidence adduced by the State. Their evidence not only covered their identification of the appellant and his co-accused at the scene, but they gave overwhelming evidence too about their identification at two separate identification parades conducted by police at the Mount Hagen Police Station. These witnesses confirmed at trial their identification of the appellant as one of the persons they saw at the scene and participating in the killings who they later identified at the identification parades conducted by the Police in Mount Hagen.

The appellant cross-examined these witnesses on their evidence. That failed to create any doubt or inconsistencies in the State's evidence.

The law on identification evidence is very clear. A recent statement of the law is in the judgment of this Court in Jimmy Ono v. The State (04/10/02) SC698, per Hinchliffe, Sevua, and Kandakasi JJ, in the following terms:

"The law on identification evidence is settled. The often-cited authorities are the judgments of this Court in John Beng v The State [1977] PNGLR 115. Just recently Kandakasi, J summarized those principles in an easy to follow manner in The State v. Marety Ame Gaidi (01/08/02) N2256, in these terms at pages 5 to 6 of the judgement:

'1. It has been long recognised that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a) a convincing witness may be mistaken; or

(b) a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of words need be used;

4. There should be a specific direction to closely examine the circumstances in which the identification was made;

5. Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends;

6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;

7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and

8. There should be an acquittal if the quality of the evidence is bad".

In the case before us, we note that the learned trial judge applied these principles. This is apparent from page 271 of the appeal book where the following appears:

"I remind and did remind myself that there are dangers inherent in eye witnesses identification evidence. I apply the Supreme Court decision in John Beng v The State [1977] PNGLR 115 at 122 – 123, when it followed the House of Lords decision in R v Raymond Turnbull & Ors. [1976] 63 CR. App. R. 132 that...".

The learned trial judge quoted a long passage from the Turnbull case (supra) which contains the warning about convicting an accused person based on identification evidence and warned himself of the dangers the authorities speak of. His Honour then proceeded to assess the evidence in this way:

"So in this case, after warning myself, I also am of the view that, what the witnesses saw was not in a matter of a fleeting glance. There was a roadblock, people being shot at and axed to death from a distance of 2 – 4 metres. The attackers (accused included) did not cover their faces. The whole incident took about 10 to 15 minutes which is long enough for someone to look carefully at a person and not forget his face, especially in a killing situation. So in the above circumstances, I am of the view that the quality of the State witnesses is very good. If the quality is good, I can safely say that the witnesses identification is good and I can believe them."

In relation to his identification at the identification parades conducted at the Mount Hagen Police Station, His Honour found that:

"The identification of the four (fifth escaped) accessed at Mount Hagen police station was just a matter of recognition of whom they saw at the scene. Even that was good with the exception of Mary Lau missing one of the accused and pointed to a wrong Hagen man but this she corrected by pointing one of the accused and told the police men to ignore the Hagen man".

As can be seen from the above extracts of his Honour's judgment, the trial judge did sufficiently warn himself of the dangers of acting on identification evidence that were put before him. Also, we note that His Honour correctly took into account all of the factors bearing on the quality of the identification evidence. The appellant is not able to point out any factor that operated against such a finding. In these circumstances, we are satisfied that the learned trial judge correctly applied the principles governing identification evidence and acting on them. Hence, the appellant has failed to demonstrate an error that warrants this Court's intervention. Accordingly, we find the complaints of the appellant in relation to the evidence against him and his involvement and eventual finding of guilt against him is without merit.

There is one aspect we wish to mention before concluding. That concerns the village leader's handing the appellant over as a suspect.

The issue of community leaders identifying, rounding up and handing over to Police, members of their own clans or tribe has received approval and acceptance by the National Court. Kandakasi J., in The State v. Tony Pandau Hahuahori (19/02/02) N2185 reviewed the cases on point and said:

"The law is that, if the leaders in the village or community round up offenders and hand them over to the police, the Court should place weight on that fact."

This practice and contribution of the village leaders to law enforcement should not be treated as mere conjecture. This should particularly be so when supported by appropriate evidence or there is nothing showing an error on the part of the village leaders in bringing offenders to justice.

His Honour had regard to the judgment of Woods J., in State v Anis Noki [1993] PNGLR 426, at 427. There, the Court noted that the Constitution clearly recognised the overriding importance of the traditional village and community leaders as the main viable asset in the country and the need for partnership with the community leadership and the legal system for a better PNG. Hence, when the community works to participate in the legal process, the courts must accept this participation and not disregard it. There must of course be proper basis for accepting such inputs of the community leadership. Relevant in that consideration is the fact that given the communal nature of PNG society, there can be very few secrets. When something happens, everyone soon knows. There are no strangers in the night.

It follows, therefore, that where village leaders come forward with their own knowledge and have "made" people surrender, there must be some weight in that. For clearly, no village or community leader would be prepared to blame their own line for nothing. This does not mean, however, that the Court must readily infer guilt. Instead, they should allow relevant and admissible evidence to guide them into finding an accused guilty or not guilty. This means that just because the leaders turn in some suspects does not automatically follow that the criminal justice system must not take its normal course. Instead it must.

We find the practice and the reasons for accepting the practice sound so we endorse and adopt it. Given that we go on to add that there would be a presumption against an accused person handed over to the Police by his community or village leadership that he was involved. That presumption would be strong where other evidence supports the accused involvement and or committing the offence under consideration. The onus would then be on the accused to show why that presumption should not operate against him.

The learned trail judge in the present case considered this issue in his judgment at page 281 of the appeal book in these terms:

"In the present case, the accused were named by the leaders whose names were also given to the police. Police then came and asked for them to surrender. Those who were present surrendered. One later escaped. I therefore place much weight in this fact (surrender) which is also supported by the four State witnesses. They were already identified by the leaders and their Community as the persons responsible for the triple deaths. The police were only effecting lawful arrest and to carry out the remaining procedures on collecting evidence to support the findings of the leaders and the villagers. This they did by calling and interviewing State witnesses three of whom came and gave evidence".

We find no error in these. The learned trial judge not only considered the handing over of the suspects but he noted that other evidence support the appellant's involvement and commission of the offence. The appellant failed to demonstrate where or how the learned trial judge might have fallen into error, if any.

For all of the foregoing reasons, we dismiss the remaining grounds of appeal or complaint of the appellant in relation to his verdict.

Appeal Against Sentence

The final issue on which the appeal turns is the appeal against sentence. This was a case of three wilful murders in a deliberate payback killing. The killings took place on a highway after setting up a roadblock. There is no evidence of any warnings given before the brutal murders. There is also no evidence, of what part each of the deceased played in the alleged killing of the student. If indeed the deceased Leo Kende was involved in the killing of the school boy, there is no evidence or any explanation as to why the appellant and his people could not have allowed him to be dealt with adequately by the criminal justice system.

The appellant and his co-offenders became, judge jury and executioners all at the same time against three completely innocent people. The appellant and his people live not far from the Wabag township and the nearby Christian churches such as the SDA church. They were therefore in a position to appreciate that what they set out to do was wrong and against the law but they decided and did proceed to commit the offences. There might be an explanation for the killing of Leo Kende, even if not acceptable by law. But we can not see how the killing of the wife and son be ever justified.

The appellant acted in the company of twenty men, who planned and set-out to execute successfully a wilful murder plan. That plan included the setting up of a roadblock, which is a criminal conduct and offence. The appellant's leaders rounded him and his co-offenders up and handed them over to the police. Despite that, he continued to deny the charge. This necessitated a trial spreading over a long period. The record does not show him showing any remorse.

In these circumstances, the highest penalty for wilful murder – the death penalty was called for. However, the learned trial judge imposed the lower penalty of life imprisonment. If the State cross-appealed against sentence, we could have increased the sentence to the maximum of death penalty. We note the Court does have the power under s 23(4) of the Supreme Court Act to increase sentences. We are not inclined to doing that here. Instead we issue a warning as we have done with some of the cases we have heard and determined in the same circuit that in future, we will not hesitate to do that.

The end result of all this is that the appellant has failed to establish a case of demonstrable error warranting this Court's intervention. It is settled law that this Court sitting on appeal should be slow to interfere with the decision of a trial judge unless an appellant demonstrates an identifiable error that warrants the intervention of this court. This Court made that very clear in the case of William Norris v The State [1979] PNGLR 605. Accordingly, we have no difficulty in ordering a dismissal of the appeal as having no merit. We therefore order that the appeal against both conviction and sentence be dismissed and the conviction and sentence of the National Court be confirmed.

Lawyer for the appellant: The Public Solicitor.
Lawyer for the respondent: The Public Prosecutor.