Dege v Independent State of Papua New Guinea [2009] PGSC 57; SC1308 (30 September 2009)

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CRIMINAL LAW - Appeal – Particular offence- Mutiny- Appeal against conviction – Whether conviction safe and satisfactory- Whether facts sufficient to establish each element of offence to the required standard of proof in criminal cases –

PRACTICE AND PROCEDURE – Indictments – Validity - Indictments presented before Defence Force Judge by Defence Force Prosecutor under s48 of Defence Act – Whether Indictment should be brought in the name of the State or the Commander of the Defence Force- Whether Defence Force Prosecutor is obliged by law to sign the indictment before or at the time of its presentation- Defence Act 1974, ss 47 – 48.

STATUTORY INTERPRETATION - Defence Force Act – Powers and functions of a Defence Force Judge – Whether Defence Force Judge sits as a Military Court Martial or as a National Court or a Judge of the National Court- Defence Force Act 1974, s47

In an appeal against conviction for the offence of mutiny under s 41of the Criminal Code, apart from challenging the conviction on the trial Judges findings of fact, the appellants raised various issues as to the jurisdiction of the Defence Force Judge to receive and deal with an indictment presented by the Defence Force Prosecutor appointed under s48 of the Defence Act.

(1) An indictment charging a member of the Defence Force with mutiny under 41 of the Criminal Code may be brought in the name of the State by a Defence Force Prosecutor appointed under s48 of the Defence Act and brought before a Defence Force Judge appointed under s 45of the Defence Act.

(2) The Defence Force Prosecutor appointed under s 48 of the Defence Force Act is not a State Prosecutor within the meaning of s 176 of the Constitution, s 2 of the Public Prosecutors Act. He is appointed under the Defence Act to prosecute criminal offences before the Defence Act and his prosecutorial authority comes under that Act.

(2) An indictment brought and presented before a Defence Force Judge under s47 of the Defence Act need not be signed by the Defence Force Prosecutor, however it must be reduced into writing and presented.

(3) In the absence specific procedure on presentation of indictments under the Defence Act, pursuant to s47 (3) of the Defence Act, the rules relating to indictments under the Criminal Code apply as far as practicable.

(4) By virtue of s45 (8) of the Defence Act, the Defence Force Judge sits as the National Court or a Judge of the National Court and not as a Judge of a Military Court Martial.

(5) The indictment in this case was properly brought in the name of the State and presented by the Defence Force Prosecutor. The Defence Force did not commit any procedural error in the circumstances in proceeding on the indictment. The Defence Force Judge also did not err in finding that all elements of the offence had been established to the required criminal standard of proof. Consequently the appeal against conviction is dismissed and the conviction and sentence imposed by the Defence Judge are confirmed.

"1. All 27 accused named in the indictment are current serving members of the PNG Defence Force and as such are all persons subject to the Code of Military Discipline.

2. The Military Instruction Building and the Communication Centre building were burnt down on the early hours of the 9 March 2002.

3. The armory was broken into between the late hours of 8 March and early hours of the 9 March 2002 and a large amount of weapons stolen.

4. The magazine was broken into on the morning of the 9 March 2002 and a large quantity of ammunition was stolen.

5. There was a gathering under the rain tree in front of the C company building on the morning of 9 March 2002. Another gathering was called for at about 1.00 pm that same day at the same place.

6. Another meeting was held at the Aussie Rules Oval at about 5.00 pm where Private Paul Holonga presented a petition to Sir Michael Somare on behalf of the Soldiers.

7. The petition demanded the government of the day and the Defence Force commander to resign immediately.

8. On 11 March 2002 there was a gathering under the rain tree in front of C Company building.

9. On 13 March 2002 there was another gathering under the rain tree in the presence of Lt Colonel Janguan.

10. The crisis management team led by Colonel Ben Norrie came on 13 March to Moem Barracks and returned on 15 March.

11. On 14 March there was a gathering at the other ranks clubs with the crisis management team.

4. Following a lengthy trial, the trial judge on 20th December, 2003 convicted the appellants of mutiny. The reasons for conviction are contained in a written judgment delivered by the trial Judge. The Judge found that all the appellants, except for Private Jimmy Iwira and Corporal Kila Lalai who were subsequently acquitted, jointly and severally took part in the mutiny. They were sentenced as follows:

Name of Appellants	Term of imprisonment	Pre remand period
1. Private Nebare Dege:	15 years imprisonment with hard labour.	Less 9 months (14 years 3 months to serve)
2. Private Francis Mantenepoa	12 months imprisonment with hard labour.	Less 9 months (3 months to serve)
3. Corporal Suke Luka	9 months imprisonment with hard labour.	Less 9 months (rising of the court)
4. Corporal Patrick Singeri	9 months imprisonment with hard labour	Less 9 months (rising of the court)
5. Lance Corporal William Gube	9 months imprisonment with hard labour	Less 9 months (rising of the court)
6. Lance Corporal Liston Naged	5 years	Less 9 months (4 years 3 months to serve)
7. Lance Corporal Anton Kawas	12 months imprisonment with hard labour	Less 9 months (3 months to serve)
8. Private Paul Holonga	13 years imprisonment with hard labour	Less 9 months (12 years 3 months to serve)
9. Private Thomas Paraka	13 years imprisonment with hard labour	Less 9 months (12 years & 3 months
10. Private Roland Roidi	12 months imprisonment with hard labour	Less 9 months (3 months to serve)
11. Private Wariki Simanto	12 months imprisonment with hard labour	Less 9 months (3 months to serve)
12. Private Elvis Kabuni	15 years imprisonment with hard labour	Less 9 months (14 years 3 months to serve)
13. Private Benson Robert	5 years imprisonment with hard labour	Less 9 months (4 years 3 months to serve)
14. Private Jimmy Miria	5 years imprisonment with hard labour	Less 9 months (4 years 3 months to serve)
15. Lance Corporal Evara Mohavilla	5 years imprisonment with hard labour	Less 9 months ( 4 years 3 months to serve)
16. Lance Corporal Woglo Kambu	5 years imprisonment with hard labour	Less 9 months ( 4 years 3 months to serve)
17. Private Leslie Kegwale	5 years imprisonment with hard labour	Less 9 months (4 years 3 months to serve)
18. Corporal John Bandi	5 years imprisonment with hard labour	Less 9 months (4 years 3 months to serve)
19. Private Tio Augustine	5 years imprisonment with hard labour	Less 9 months ( 4 years 3 months)
20. Private Paul Kera	5 years imprisonment with hard labour	Less 9 months ( 4 years 3 months)
21. Private Thomas Francis	5 years imprisonment with hard labour	Less 9 months (4 years 3 months)
22. Private Bisian Nimol	5 years imprisonment with hard labour	Less 9 months (4 years 3 months)
23. Private Karama Linge	5 years imprisonment with hard labour	Less 9 months (4 years 3 months)
24. Private Lowaiye Unjo	5 years imprisonment with hard labour	Less 9 months (serve 4 years 3 months)

5. The appellants initially appealed against their convictions and sentence. The grounds relating to sentence were abandoned during the hearing. The appeal therefore is only against conviction. There are 14 grounds of appeal. They are in the following terms:

6. This appeal is brought pursuant to s. 4 (1), (2)[1] and s. 22[2] of the Supreme Court Act. The Supreme Court Act (s.4 (1)) grants a right of appeal to the Supreme Court from either a judgment of the National Court or from an appeal to the National Court on questions of law, a question of mixed fact and law, or with leave of the Supreme Court on a question of facts (s. 4(2) and s.22). As we understand the grounds of appeal in this appeal raises questions of law and mixed fact and law.

7. Section 23[3] of the Supreme Court Act provides the basis for setting aside a verdict or conviction on appeal, such as the verdict was unsafe or unsatisfactory, there was an error of law or there was a material irregularity in the trial.

8. Matters in grounds 3 (a) – (e) raise points of law as to the procedure adopted during the trial and Prosecutor's capacity or standing to sign and present an indictment in the name of the State. These grounds come under Subsection (1) (a) (error of law) and perhaps 23 (1)(c) (material irregularity in the course of the trial).

9. Matters in grounds (f)(g)(h)(l) and (m) are concerned with questions of fact. They are related to questions of weight and credibility of the witnesses, both prosecution and defence and they come under subsection (1) (a) (unsafe and unsatisfactory conviction). Leave is required from the court.

10. Appeal grounds (i)(j)(k) raises questions of mixed fact and law and they come under subsection (1)(b)

11. It is also significant to note that even when a point raised in the appeal under any of the three categories in s 23 (1) is decided in favor of the appellant, the Court may dismiss the appeal if it considers that no actual miscarriage of justice has actually occurred: s 23 (2).

12. In respect of s. 23 (1)(a), in State v John Beng [1977] PNGLR 115, the Supreme Court held that on an appeal against conviction pursuant to s. 22 (1) (a) of the Supreme Court Act 1975, (now s 23 (1)(a) ), 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. This principle establishes that a court of appeal in Papua New Guinea does not allow appeals because it has a mere "lurking doubt", words used elsewhere by other appeal courts. The evidence or conduct of the trial must raise a reasonable doubt as to the safeness or satisfactoriness of the verdict before an appeal is allowed.

13. Appeal grounds 3 (b) – (e) raise points of law as to the procedure adopted during the trial and Prosecutor's capacity or standing to sign and present an indictment in the name of the State. To determine these grounds of appeal, we consider it necessary set out in some details the constitutional and legislative set up of the military court within the Papua New Guinea Defence Force and its relationship with the Public Prosecutors Office.

14. Section 188 (1)[4] of the Constitution establishes the Papua New Guinea Defence Force as one of the State Services. Subsection (2) goes on to provide for Acts of Parliament to be enacted to regulate State Services. In accordance with the Constitution, the Defence Act was enacted to establish a Papua New Guinea Defence Force and to provide for its control, maintenance, "discipline" and for related matters.

15. Section 201(5)(a)[5] of the Constitution provides that there shall be within the Defence Force, an office of Commander of the Defence Force, who shall be the principle military adviser to the Minister for Defence on matters relating to the Defence Force, and who shall have other powers, functions, duties and responsibilities prescribed under an Act of Parliament.

16. The Defence Act through the authority of the Constitution establishes a court system within the legal framework of the Defence Force to give effect to the purpose of the Defence Act and the Constitution. One of the powers exercised by the Commander is to appoint lawyers to prosecute "person subject to the Code of Military Discipline before the Defence Force Judge pursuant to s 48 (1)[6] of the Defence Act. Section 45[7] of the Defence Act provides for appointment of Defence Force Judges and deputies and accords them jurisdiction of the National court to be applied to persons subject to the Code of Military Discipline – s.s (8).

17. Prosecution under the Defence Act is conducted by a prosecutor appointed by the Commander of the Defence Force and approved by the Defence Force Judge. It is not a requirement that the prosecutor must be a Public Prosecutor or a gazetted state prosecutor.

18. The prosecutor is authorized to prosecute by indictment for serious offences. Mutiny, which is considered a serious offence under Part X of the Defence Act, is one offence that the prosecutor is authorized to prosecute. The Defence Act does not define what a serious offence is. Under the Criminal Code, mutiny is expressly described as an "indictable offence".

19. The choice of word to describe the offence of mutiny under the Defence Act and the Criminal Code is significant. The Defence Act not only established the Papua New Guinea Defence Force but also "to provide for its control, maintenance and discipline". Prosecution under the Defence Act must be seen in that context. It is a disciplinary process, quite distinct from a criminal process. Offences prescribed under the Defence Act are disciplinary in nature. The offence of mutiny therefore is a disciplinary offence, quite distinct from an indictable offence.

20. In Sudy Yaku v Commissioner of Police; Ex parte The State [1980] PNGLR 27, the court in discussing the application of s 16 of the Criminal Code (Ch No 262) to disciplinary offences, held that disciplinary offences are quite distinct from crimes. Applying those observation to this case it becomes obvious that procedures adopted under the Criminal Code, to some extent, has no relevance to military prosecutions. Criminal procedure can be applied with appropriate modification: s47 Defence Act.

21. Given their distinct classification, we find the submission by Mr. Koeget that appropriate procedure to commence prosecution should be by way of a private prosecution pursuant to s. 616[8] of the Criminal Code is tenuous. Section 616(a) of the Criminal Code allows any person with leave of the National Court to present any information against any offenders for an indictable offence not punishable by death. The provision refers to indictable offence, not serious offence. The consequences of all this is that the procedure under s.616 has no application or has no relevance in a prosecution of offences under the Defence Act. Moreover no evidence was led during the trial to show this procedure was adopted pursuant to s. 47 of the Defence Act.

22. The further argument that the proceedings ought to have been commenced by way of laying of an information is mischievous and clearly inconsistent with subsection 47 (3) of the Defence Act. This provision states in no uncertain terms that " an indictment may be presented in the National Court constituted by the Defence Force Judge notwithstanding that no person has been committed for trial, or that committal proceedings have not been taken." In our view the procedure adopted to prosecute the mutinous soldiers was perfectly legal. The matter was correctly proceeded with by way of an indictment before the Defence Force Judge. We find no error of law or procedure. We dismiss appeal grounds (b).

23. It is important to establish the status of Court proceedings under Part IX of the Defence Act. The key provisions are ss 45, 47 and 48.

24. The appointment, powers, functions and duties of the Defence Force Judge are spelt out in the Defence Act: s 45 (1), (2) & (6). The Defence Force Judge is a serving Judge of the National Court or the Supreme Court: s 45 (3). He is not required to be a member of the Defence Force. In the United States, the military judge, as he is known, is not a serving judge. He must be a commissioned officer of the armed force and also be a member of a bar. (See s. 826. Art. 26. of the Uniform Code of Military Justice)

25. The jurisdiction of the Defence Force Judge covers offences committed by persons subject of the Code of Military Discipline: s 45 (8). The Code of Military Discipline applies to members of the Defence Force only; it does not apply to the Commander of the Defence Force: Code of Military Discipline, C2.

26. The Defence Force Judge has the same jurisdiction, powers and functions of the National Court or a Judge of the National Court and may exercise or perform any of those functions in any place in Papua New Guinea or any part of the world: s 45 (8). The Defence Force Judge has jurisdiction to deal with any criminal offence against any law of Papua New Guinea which is committed by a member of the Defence Force: s 45 (9). This includes those serious offences prescribed by Part X (ss 53-58) of the Defence Act. In a case where an indictment is required to be presented in respect of an offence under any law, it is "presented in the National Court constituted by the Defence Force Judge" notwithstanding that no person has been committed for trial or that committal proceedings have not taken place: s 47 (3).

27. In essence therefore, the Defence Force Judge sits as the National Court or as a Judge of the National Court. This may be different to the situation in other countries where there may be distinct Military Courts set up to deal with offences against the laws of the land to the exclusion of civil Courts. The Judges of such Military Courts are required by law to be enlisted members of the Defence Force. Under the Defence Act, it is intended that criminal offences committed by members of the Defence Force in Papua New Guinea under any law are dealt with by civilian Courts of the National Legal System. In the case of a member of the Defence Force charged with an indictable offence, the matter is proceeded with before the National Court presided over by a Judge of that Court who is appointed under the Defence Act as a Defence Force Judge. The Judge exercises or performs the same jurisdiction, powers, functions and duties as that of the National Court or a Judge of the National Court.

28. By virtue of s 45 (8), the specific procedures to be applied in regard to the performance of these functions, the powers, functions and duties are those applying to the National Court under relevant laws such as the Criminal Code, subject of course to the express provisions of the Act. In terms of the practice and procedure, the practice and procedure of the National Court is adopted and applied by the Defence Force Judge with the consent of the Chief Justice: s 47 (2).

29. The situation is different with appointment of a prosecutor and defender. They are qualified lawyers who are enlisted members of the Defence Force: s48 (2) & (3). They are appointed by the Commander of the Defence Force upon approval by the Defence Force Judge. The Public Prosecutor or the Public Solicitor has no constitutional function to perform under the Defence Act. They may second officers from their respective offices to be appointed as prosecutors or defenders but in order to be eligible for appointment, they must first be or become enlisted members of the Defence Force. Once appointed under the Defence Act, they perform functions and responsibilities which are spelt out in the Defence Act: ss 48.

30. The functions and duties of the prosecutor is set out in s 48 (2). He may present or withdraw an indictment and appear and be heard on an indictment before the Defence Force Judge: s 48 (2). The defender may appear and be heard on behalf of the accused person before the Defence Force Judge.

31. Proceedings in respect of (criminal) offences before a Defence Force Judge is commenced by presentation of an indictment: s 47 (3) and s 48 (2)(a). Section 48 (1) simply refers to the presentation or withdrawal of an indictment. There is no provision in the Defence Act which defines an indictment, the form and content of the indictment and manner of presentation and withdrawal of an indictment. The only law in Papua New Guinea which provides a complete code on indictments is Part VIII of the Criminal Code. By virtue of s 45 (8) of the Defence Act, the provisions in the Criminal Code on indictments as expounded by judicial pronouncements, equally apply to proceedings on an indictment before the Defence Force Judge but with appropriate modifications to suit the special nature of proceedings under the Defence Act.

32. The aspects of the procedure on indictments in the National Court which are pertinent to the proceedings on an indictment before the Defence Force Judge are as follows. The prosecution for an indictable offence is commenced by presentation of an indictment by the Public Prosecutor or a State Prosecutor. The indictment is brought by the Public Prosecutor in the name of the State: The State v John Mogo Wonom of Jigi [1975] PNGLR 311. It is reduced into writing and presented by the Prosecutor: s 525(1) & (2) and s 526 (1) and (2) of the Criminal Code

33. The Criminal Code does not specify the manner of presentation of the indictment apart from saying the " Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may – reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant" (s 525 (1)(a) ) & s 526 (1) ) and "may be presented to the National Court by the Public Prosecutor or any State Prosecutor" (s 525 (2) & s 526 (2) ). There is no requirement in the Criminal Code for the indictment to be signed by the Prosecutor before it is presented.

34. The Criminal Code of Queensland which was adopted and applied in Papua New Guinea prior to Independence contained provisions for signing an indictment. Section 560 provided:

"When a person charged with an indictable offence has been committed for trial and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment. The indictment is to be signed and presented to the Court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council".

35. In R v ToVarula [1973] PNGLR 140, Minoghue CJ had this to say on the ambit and purpose of this provision:

" The first thing to be noticed in s. 560 is that the indictment is a written charge and as s. 1 of the Code shows it is a written charge preferred against an accused person in order to (commence) his trial before some court other than justices exercising summary jurisdiction. Other and detailed provisions in Chapter LX show just what care has to be exercised in framing an indictment and that it has to be framed so that the accused person knows precisely what charge it is that he has to meet. The main intent as it seems to me of s. 560 is that the charge should be reduced to writing. It is understandable that a responsible person must see that the indictment is properly framed and that a court should have the assurance of proper responsibility for its framing and for its presentation, and this as I see it is the object of the enactment of the second paragraph of the section. The emphasis in my view is on the signing and presentation to the court." (at p 145)

35. The current position in some Australian States is similar to the pre-Independence situation in Papua New Guinea. For instance, s 560 of the Criminal Code of Queensland which provides "The indictment shall be signed and presented to the Court by a Crown Law Officer...".

36. In the United Kingdom, there is also express provision for the indictment to be signed and preferred or presented by the appropriate officer of the Crown Court: see s 2 (3) and Second Schedule of Administration of Justices Act 1933 (UK). Where the appropriate officer of the Crown Court is in doubt whether or not to sign the indictment, he refers the matter to the trial judge for his decision: R v Chairman of London County Sessions, ex p. Downes (1953) 37 Cr. App.R 148.

37. We do not know of the reason why the current s 525 and s 526 of the Criminal Code did not retain the provision on signing of an indictment. We assume it was a deliberate omission by the Parliament for good reasons. From this omission we infer that it was intended by the Parliament the Prosecutor's failure to sign an indictment, whether by design or omission, would not render the indictment a nullity. It was intended that an indictment in written form whether signed or unsigned by a Prosecutor, would be orally presented to the trial Judge and be accepted by the Judge.

38. In our view, the act of orally spelling out the charge with which the accused is charged and physically presenting the indictment in open Court by the Prosecutor constitutes the presentation of the indictment. The indictment may be signed or unsigned by the Prosecutor and it may be type-written or handwritten as the case may be: R v Ongasi Wosis [1971-1972] PNGLR 476. The indictment is not a nullity if it is not signed by the Prosecutor and presented to the Judge. However, as a matter of good practice the indictment should be signed by the Public Prosecutor or State Prosecutor and then presented.

39. These principles should equally apply to proceedings commenced by indictment before the Defence Force Judge with appropriate modifications to conform to appropriate requirements under the Defence Act.

40. Applying these observations and principles to the circumstances of the present case, in our view, the indictment was correctly brought in the name of the State. It was correctly signed and presented by the duly appointed prosecutor Major Keven Kassman.

41. For these reasons we find no error of law or procedure committed by the trial Judge in conducting the trial on the indictment as presented by Major Kassman. We dismiss appeal grounds (b),(c), (d) and (e).
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3. (a) That there was an error of law when at the commencement of the trial, the learned Prosecutor did not specify which of the category of mutiny as defined under Section 53 of Defence Chapter 74 the Appellants committed.

42. This ground of appeal raises question of law in the drafting of the indictment. The indictment contained the following charges:

" The above named being persons subject to the Code of Military Discipline are charged that the said persons did take part in a Mutiny jointly and severally between 08th March 2002 t0 23rd March 2002 at 2RPIR Moem Barracks Wewak, East Sepik Province contrary to Section 55(1) of the Defence Act Chapter No. 74 of the Revised Laws."

43. Section 55(1) of the Defence Act creates the offence of mutiny. A person subject to the Code of Military Discipline who takes part in a mutiny is guilty of an offence. Section 53 of the Defence Act defines mutiny in the following terms:

"mutiny means a combination of two or more persons subject to the Code of Military Discipline or the service law of any ally of Papua New Guinea or between persons of who at least two are such persons:-

" (a) to overthrow or resist lawful authority in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force; or

(b) to disobey any such authority in such circumstances to make the disobedience subversive to discipline, or with the objects of avoiding any service or duty against, or in connexion with operations against, an enemy; or

(c) to impede the performance of any duty or service in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force."

44. The appellants were jointly and severally indicted. Evidence was led in the trial that all the appellants were serving members of the PNDF and persons subject to the Code of Military Discipline. That evidence has not been disproved and to that extent we dismiss grounds 3(n).

45. Evidence was also led that the appellants "jointly and severally" participated in unlawful conduct which fell within the definition of mutiny. The unlawful conducts were that they:

46. The evidence that was led at the trial overlapped with the three prescribed classes of mutiny in s. 53 of the Defence Act. Each one may have committed a specific offence, but the allegations were that they all acted in concert. Their conducts were geared towards overthrowing or resisting lawful authority in the Defence Force, disobeying any such authority and impeding the performance of any duty or service in the Defence Force. All the appellants were responsible in law for the consequences of each others actions. They aided and abetted each other by their presence and readiness to assist. State v John Badi Woli & Pengas Rakam [1978] PNGLR 51; Omowo and Yirihim v The State [1976] PNGLR 188.

47. This was a case where all the classes of mutiny as defined under s. 53 of the Defence Act were applicable. We find no error in law in the manner the indictment was drafted. In our view no prejudice was occasioned to the appellants when they were arraigned. We dismiss ground 3(a) and (m) of the appeal.

48. Grounds 3(f)(g)(h)(l)and (m) of appeal can be dealt with together. It is contended that the trial judge erred when he rejected their evidence and preferred the evidence of the State witnesses. The relevant principle to apply is stated by the Supreme Court in Lewis v PNG [1980] PNGLR 219. At p.235 per Miles J this Court said:

"In deciding the merits of the case on appeal, however one new matter arises and that is the decision of the trial Judge himself. That decision, with all findings contained in it, has to be given proper weight. A Supreme Court Judge is not free to substitute his own findings of fact unless he has given consideration to the whole of the decision of the National Court Judge. In some areas the Supreme Court may properly be more reluctant to differ from the National Court Judge. On a question of credit of a witness the trial Judge is in a superior position and his assessment he's not likely to be rejected. Where the decision is ultimately and largely an individual matter of opinion, for instance in a portioning flame for contributing negligence, or assessing damages the pain and suffering, the trial Judge's finding, based on his own opinions, should carry substantial weight. So to where the finding is one of a 'primary fact' or 'evidentiary fact' rather than an inference from such facts (if the distinction may be drawn), the trial Judge's decision should rarely be disturbed."

49. In the Supreme Court case of Karo Kamoga v. The State [1981] PNGLR 443. At p 455 Pratt J referred to Whitehouse v. Jordan and Another [1980] UKHL 12; [1981] 1 ALL E.R. 267 and said, "Lord Justice Edmund- Davis says:

"It has long been settled law that, when the decision of a trial judge is based substantially on his assessment of the quality and credibility of witnesses, an appellate court "must, in order to reverse, not merely doubts whether the decision below is right, be be convinced that it is wrong'...And that is so irrespective of whether or not the trial judge made any observations with regard to credibility."

50. The question here is whether there was some fundamental misconception of the evidence or whether the trial judge failed to take properly into account the evidence as a whole. It may also be asked if the findings of fact were reasonably open to the trial judge.

51. The trial judges devoted 54 pages of his judgment on the issue of credibility and demeanor of witnesses. His Honour was meticulous in his judgment. His Honour summarized the evidence of prosecution witnesses and the defence witnesses and then dealt with each appellant individually. His Honour did not gloss over the evidence of witnesses. His Honour carefully discussed the evidence of the witnesses and applied them to the circumstances of the case. His Honour rejected the evidence of the defence and in so doing made inferences which were clearly open on the prosecution case. In our view the appellants have not shown that there was some fundamental misconception of the evidence or that the trial judge failed to take properly into account the evidence as a whole. We cannot see any basis for interfering with the findings of facts by the learned trial judge. We would therefore refuse to grant leave to appeal on these grounds.

52. We also point out that grounds 3(f)(g) and (h) in their present form are too general. To succeed in an appeal against conviction, the appellants must point to errors in the judgment. There is a strong presumption in favour of the correctness of the decision appealed from, and that is that decision should be affirmed unless the court is satisfied that it is clearly wrong. Australian Coal and Shale Employee'e Federation v The Commonwealth [1953] HCA 25; (1953) 94 C.L.R 621. It is not the function of this court to shift through the evidence and determine what the errors are and who it applies to. It makes the task of the court unnecessarily burdensome and time consuming.

53. The findings of fact were reasonably open to the trial judge. We dismiss grounds 3(f)(g)(h)(l) and (m) of the appeal.

54. Grounds 3(i)(j) and (k) of appeal can be dealt with together. They involve questions of mixed fact and law.

55. In ground (i) and (j), it is contended that the trial judge did not address his mind to the relevant principles applicable in accomplice evidence when he convicted Evara Mohavilla, Bisini Nimol, Lawaiye Unjo, John Bandi, Tio Augustine. The law on accomplice evidence is well settled in this jurisdiction. Whilst evidence of one accomplice is not evidence against another accomplice, the Court may nonetheless, after warning itself, accept such evidence if the evidence of one accomplice against another accomplice is corroborated by the accused himself by way of admissions or by evidence of some other witnesses: see The State v. Amoko Amoko [1981] PNGLR 373; Keko Aparo & Others v The State SC 249 (25TH May, 1983); Abraham Saka v The State SC 719. The State v. Joseph Tapa [1978] PNGLR 134.

56. At the beginning on his judgment on verdict, the trial judge reminded himself on those principles. At page 2980 His Honour said:

"However, before I do that, a submission was made to the effect that a lot of the prosecution witnesses were implicated as being armed and also taking an active part in the mutiny, and that they were possible accomplices. As such the court was asked to warn itself of the dangers of relying on the evidence of accomplices. This I do and I thank counsel for reminding me."

57. So contrary to the contentions, the trial judge alluded to the relevant principles and properly applied them to the facts of the case. His Honour carefully discussed the evidence of accomplice evidence and warning him of the inherent danger of an accomplice. His Honour identified the following soldiers as possible accomplices. They were Mellie Mong and Desmod Nalei. His Honour treated their evidence with caution. His Honor also relied on the evidence of other independent witnesses like Glen Fainame and Cletus Nakunai to convict the appellants. The trial Judge did not fall into any error. We dismiss these grounds of appeal.

58. In Ground 3(k), it is contended that the trial judge fell into error in refusing to allow the alibi evidence of Anton Kawas. It was contended that the trial judge did not properly apply the relevant principles of alibi to the circumstances of this case. The Defence Act does not specify the manner of adducing alibi evidence. For the same reasons that we have stated and by virtue of s 45 (8), the specific procedures to be applied in regard to adducing alibi evidence are those applying to the National Court under relevant laws such as Criminal Practice Rules. Order 4 rule 4 is relevant. The first requirement is for the accused to give a written notice to the Public Prosecutor 14 days prior to the date of trial of the accused person. This requirement was not adhered to by the appellants. At page 2994 His Honour said:

"During the pre trial conferences and also during the course of the trial the accused had indicated through their lawyers that their defence was that they were not involved in the mutiny. In other words there was a general denial. They also indicated through their lawyers that identification of the accused would be an issue. The defence of alibi was never mentioned in their defence. It was only during their own evidence that many of them raised the alibi for the first time. It is for this reason that the Court refused to allow any supporting alibi evidence."

59. The effect of non compliance with this rule reduces the weight to be attached to the evidence of the appellant: John Jaminan v The State (No.2). The requirement to give notice to call alibi evidence is essential to a fair trial. Where alibi is sought to be raised then the gist of the evidence should be put to the prosecution witness to give an opportunity to comment. This practice is trite and consistent with the practice established in the case of Brown v Dunn. This did not happen in this case. We find no error in law and fact when the trial judge refused to allow any supporting alibi evidence. We dismiss this ground of appeal.

60. For the foregoing reasons, the appeal against conviction is dismissed, the conviction and sentences imposed on each appellant by the Defence Force Judge are confirmed.
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Mr. Koeget & Mr. Siminji (Public Solicitor): Lawyer for the Appellants
Public Prosecutor: Lawyer for the Respondent

^[1] 4. Right of appeal from National Court.
(1) An appeal in accordance with this Act lies to the Supreme Court from a judgement of the National Court.
(2) An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal—
(a) on a question of law; or
(b) on a question of mixed fact and law; or
(c) with the leave of the Supreme Court, on a question of fact.
5. Incidental directions and interim orders.
^[2] 22. Criminal appeals.
A person convicted by the National Court may appeal to the Supreme Court—
(a) against his conviction, on any ground that involves a question of law alone; and
(b) against his conviction, on a question of mixed fact and law; and
(c) with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal—
(i) that involves a question of fact alone; or
(ii) that appears to the Supreme Court to be a sufficient ground of appeal; and
(d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
^[3] 23. Determination of appeals in ordinary cases.
(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 judgement 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.
^[4] 188. Establishment of the State Services.
(1) The following State Services are hereby established:—
(a) the National Public Service; and
(b) the Police Force; and
(c) the Papua New Guinea Defence Force; and
(d) the Parliamentary Service.
(2) Acts of the Parliament may make provision for or in respect of other State Services.

⁵ (5) There shall be—
(a) within the Defence Force, an office of Commander of the Defence Force, who shall be the principal military adviser to the Minister responsible for the Defence Force on matters relating to the Defence Force; and
^[6]48. Prosecutors and defenders.
(1) For the purpose of proceedings before the Defence Force Judge or a Defence Force Magistrate, the Commander of the Defence Force may appoint members of the Defence Force approved by the Defence Force Judge to be prosecutors or defenders.

^[7] 45. The Defence Force Judge and Deputy Judges.
(1) There shall be a Defence Force Judge and such number of Deputy Defence Force Judges as the Head of State, acting on advice, determines.
(2) The Defence Force Judge and the Deputy Defence Force Judges shall be appointed by the Head of State, acting on advice given after consultation with the Chief Justice.
(3) The Defence Force Judge shall be a person who is a Judge of the Supreme Court or the National Court.
(4) The Deputy Defence Force Judges shall be persons who are qualified to be the Judges of the Supreme Court or the National Court.
(5) The powers, functions and duties of the Defence Force Judge and the Deputy Defence Force Judges are as provided in this Act.
(6) The Defence Force Judge may, by instrument under his hand, delegate to Deputy Defence Force Judge all or any of his powers and functions under this Act.
(7) A delegation under Subsection (6) is revocable, in writing, at will, but this subsection does not allow the Defence Force Judge to intervene in a proceeding before a Deputy Defence Force Judge.
(8) The Defence Force Judge has and may exercise and perform, in any part of the world, the jurisdiction, powers and functions of the National Court or a Judge of the National Court in relation to persons subject to the Code of Military Discipline, and the National Court may be constituted in any place by the Defence Force Judge.
(9) The jurisdiction of the Defence Force Judge under Subsection (8) may be exercised in relation to an offence against the law of Papua New Guinea notwithstanding that the offence is expressed to be triable summarily or that it is within the exclusive jurisdiction of a court other than the National Court.
^[8] 616. Information by leave of the Court by private prosecutors.
(1) Any person may by leave of the National Court present any information against any other person for an indictable offence not punishable with death that is alleged to have been committed by the other person.

Supreme Court of Papua New Guinea

Dege v Independent State of Papua New Guinea [2009] PGSC 57; SC1308 (30 September 2009)