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Tonde v The State [1994] PGSC 20; [1994] PNGLR 539 (29 July 1994)

PNG Law Reports 1994

[1994] PNGLR 539 - Ipande Tonde v The State�

[1994] PNGLR 539

SC464

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IPANDE TONDE

V

THE STATE

Mount Hagen

Amet CJ Kapi DCJ Los J

26 July 1994

�29 July 1994

EVIDENCE - Alibi evidence - Timing and credibility - No requirement for alibi witnesses to give statements to police.

CRIMINAL LAW - Murder - Erroneous inference of guilt - No obligation for accused to protest innocence to police.

Facts

Ipande Tonde was convicted and sentenced on a charge of murder. He was part of a group of men involved in the fatal attack. He appealed against conviction on grounds that:

N2>1.������ The trial Judge erred in rejecting the alibi evidence on the basis that the alibi witnesses did not report to the police in Wabag before the trial.

N2>2.������ The trial Judge erred in drawing the inference of guilt from the fact that no one came to the police station and protested that the deceased was killed by someone other than the appellant.

N2>3.������ The evidence of identification was made in circumstances that it was unsafe to rely on.

Held

N1>1.������ The trial Judge erred in not giving weight to the alibi witnesses on the basis that they did not give their alibi statement to police before the trial. There is no requirement of law or practice for alibi witnesses to give statements to the police. A failure to give an alibi statement to the police does not necessarily mean that the alibi evidence given in court lacks credibility. The trial Judge did not reject the alibi witnesses on assessment of credibility and, so, was in error in rejecting that evidence.

N1>2.������ There is no principle of law or practice which supports a proposition that there is an obligation on an accused person to protest innocence to the police and that failure to do so may result in an inference of guilt. The trial Judge appeared to be suggesting such an obligation and such an inference, and this was an error which was fatal to the conviction.

N1>3.������ Conviction quashed.

Cases Cited

Beng v The State [1977] PNGLR 115.

Geta v The State [1988-89] PNGLR 153.

Pawa v The State [1981] PNGLR 498.

Counsel

P Dowa, for the appellant.

V Noka, for the respondent.

29 July 1994

AMET CJ KAPI DCJ LOS J:� The appellant was charged that on 5 August 1992 he murdered one Wambe Libol.

There is no dispute that the deceased was chopped with bush knives and axe to the head and body. The blow which caused the death was an axe wound to the head, which fractured the skull.

The major issue before the court below was whether the appellant was responsibile for the injuries caused to the deceased.

The State's case against the appellant is as follows: on the morning of the trouble, the deceased's son, Bea Epea, went to the bush to get some wood to build an aid post. Whilst he was collecting wood, two men came and fired arrows at him. He called for help, and the deceased came to the scene.

It is alleged that while the deceased was there, three groups of people came and attacked him. It is further alleged that the appellant was in one of the groups that came and that he was responsible for chopping the deceased on the head.

The State called three eye witnesses - the deceased's son, Bea Epea; Kilo Kundala; and Maringi Lupi. They gave evidence that they saw the appellant deliver the fatal blow to the deceased's head.

The defence case was that the appellant comes from a friendly clan of the deceased and that he did not have any reason to kill the deceased. He gave alibi evidence that at the material time he was with other men building a house. He called alibi witnesses to support his story.

The trial Judge believed the three State's eye witnesses and rejected the alibi evidence. He convicted the appellant of murder and sentenced him to life imprisonment.

Initially, the appellant appealed in person against conviction as well as severity of sentence. At the hearing, the appellant was represented by Mr P Dowa, and the notice of appeal was amended without any objections from the respondent. The amended notice of appeal is as follows:

N2>1.������ The conviction was unsafe and unsatisfactory pursuant to s 23 of the Supreme Court Act Ch 37 for the following reasons:

(a)����� the learned trial Judge failed to warn himself or direct his mind to the dangers of convicting where the prosecution evidence relied wholly or substantially on the correctness of one or more eye witnesses' testimony: Beng v The State [1977] PNGLR 115;

(b)����� The trial Judge wrongly commented on or took into account the fact that no one came to report to the police that the appellant was not involved in the killing of the deceased: Pawa v The State [1981] PNGLR 498 and Geta v The State [1988-89] PNGLR 153;

(c)����� the trial Judge wrongly commented or drew an inference that the accused readily helped members of another clan against the deceased's clan where there was, in fact, no fight, and the killing of the deceased in the early morning was the beginning of the tribal fight: Pawa v The State and Geta v The State;

(d)����� the State witness evidence was contradictory and unsatisfactory;

(e)����� the trial Judge was wrong to comment and accept as a fact that the accused would still help one of the disputing clans against the deceased's clan;

(f)����� the trial Judge wrongfully admitted medical evidence which lacked credibility.

In order to appreciate the issues raised on appeal, it is necessary to set out the background. Prior to the killing, there had been a negotiation for payment of compensation between the deceased's Yangorin clan and the Yangi clan. According to the evidence of Bea Epea, his brother fought with his wife and broke her mouth. The wife of the brother comes from Yangi clan. As a result of injuries caused to the wife, the Yangi clan demanded compensation. According to the evidence of State witness Kilo Kundala (see record page 21), the negotiations for compensation were held the day before the deceased was killed (see also the evidence of state witness Maringi Lupi page 24). The demand for compensation was met with a payment of a pig worth K700 by the deceased's clan.

It has been suggested by the State at the trial and on appeal that the members of the Yangi clan were not happy with the compensation payment and that is the reason for the attack on the deceased. However, there was no evidence at the trial to support the suggestion.

The appellant's defence at the trial was based on alibi. This was specifically raised in cross-examination of all the State witnesses indicating where the appellant was and naming the persons with whom he was working (see record pages 17, 18, 22, and 25).

The trial Judge set out the defence of alibi in his judgment (see record page 39):

"The accused denies being involved in the killing of the deceased. He says he was in his village building a house that day. He also says that his line had no argument with the deceased's line and therefore he had no reason to be angry with or want to kill the deceased. There were a couple of other men helping him build a house and they came and gave evidence that they were with him the day before the killing and the day of the killing. How they related to that day is that they heard a call that Wambe had been killed. They also say that the argument with the deceased's clan was with another clan and not their clan."

The trial Judge rejected the alibi witnesses. In his judgment (see record page 39), he said:

"When it was put to the defence witnesses why they did not go to the police with their alibis for the accused they said that their village was too far away from the police at Wabag and they could only go by flying or a long walk. They do not really explain this lapse over a period of eight months and one wonders with a large crowd of spectators from that area here to see the case in Mt Hagen this week."

Further in his judgment (see record page 40), he said:

"The accused of course denies it but perhaps his witnesses are not telling lies so much as not knowing the dates etc."

In this latter passage, the trial Judge rejected the alibi witnesses on the basis that the day they were together with the appellant was not the day the deceased was killed. With respect to the trial Judge, the alibi witnesses were not questioned on any confusion relating to the day they were together with the appellant and the day on which the deceased was killed. It was not open to him to come to this conclusion.

The appeal against conviction can be summarised as follows:

N2>1.������ The trial Judge erred in rejecting the alibi evidence on the basis that the alibi witnesses did not report to the police in Wabag before the trial.

N2>2.������ The trial Judge erred in drawing the inference of guilt from the fact that no one came to the police station and protested that the deceased was killed by someone other than the appellant.

N2>3.������ The evidence of identification was made in circumstances that it was unsafe to rely on.

In our view, the trial Judge erred in not giving weight to the alibi witnesses on the basis that they did not give their alibi statement to the police before the trial. As far as we are aware, there is no requirement in law or practice for alibi witnesses to give their statements to the police.

Secondly, a failure to give an alibi statement to the police does not necessarily mean that the alibi evidence given in court lacks credibility. Even if there was any such requirement, the alibi witnesses gave a perfect explanation at the trial that they were not able to do so as their village is very remote and it was difficult for them to go to the police station to make such statements. The trial Judge did not reject the alibi witnesses on assessment of their credibility. In fact, as we have pointed out before, on page 14 of the record, the trial Judge stated that the alibi witnesses were not telling lies.

In our view, the error committed by the trial Judge has a fundamental effect on the manner in which he dealt with the State witnesses. If he had not rejected the alibi witnesses in the manner he did, he may well have come to a different conclusion on the weight to be given to the State witnesses. It would be unsafe to allow the conviction to stand in these circumstances.

In our view, there is another reason why it is unsafe for the conviction in this matter to stand. The trial Judge, in considering the issue of guilt and innocence, made references to the lack of protest by any person to the police that the appellant was not responsible for the death of the deceased. In his judgment (see record page 39), the trial Judge said:

"A police officer detective constable Elly Lati gave evidence of doing the investigation into the killing although it seemed he did this two months after the incident. Of course we must remember in a remote village out at Maramuni which itself has only air connection to Wabag. He confirms that all times the only information he had was that the accused and some men with him were responsible for the killing of Wambe. No one came to him with any information that the accused was not involved in the killing although the accused had from the very beginning on being charged denied he was involved. The Constable did this at the scene and he did a sketch plan of the scene and confirmed that there was enough open space at the scene for any witnesses to have been able to see clearly."

Later on in his judgment (see record page 40), he said:

"The undisputed fact is we have a dead body, brutally chopped, someone must have done it and everybody must know who. And we have witnesses who clearly identify who did it or at least one of the perpetrators. So it is not easy to just ignore the evidence of recognition of the accused as one of the perpetrators. No one has given any other evidence to the police over the past eight months that it was someone else who killed the deceased. And the policemen did visit the area as seen in the sketch plan."

What the trial Judge appears to be suggesting from these two passages is that there is an obligation on the part of an accused person to protest his innocence with the police, and failure to do so may result in an inference of guilt. In our view, there is no such principle of law or practice which supports such a proposition. It is clear that the inference drawn from this proposition has affected the manner in which the trial Judge dealt with the defence witnesses. In our view, such an error is fatal to the conviction.

As we have allowed the appeal against conviction on the above grounds, it is not necessary to deal with other issues raised on the appeal. We would allow the appeal, quash the conviction and sentence, and discharge the appellant forthwith.

Lawyer for the appellant: P M Dowa.

Lawyer for the respondent: Public Prosecutor.