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Gihiye v State [2016] PGSC 64; SC1546 (28 October 2016)

SC1546

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO 24 OF 2015

BETWEEN

BEPI GIRINUSO GIHIYE
Applicant

AND

THE STATE

Respondent

Mount Hagen: Makail, Geita & Nablu, JJ
2016: 27^th & 28^th October

SUPREME COURT REVIEW – CRIMINAL LAW – Review of National Court decision on conviction – Wilful murder – Verdict of guilty – Appeal out of time – Leave required – Discretionary matter – Leave granted – Constitution – Section 155 (2) (b) – Criminal Code – Section 299 (1)

SUPREME COURT REVIEW – CRIMINAL LAW – Conviction – Safeness of – Grounds of – Identification of perpetrator – Evidence of identification given by child of tender age – Credibility and reliability of – Alibi evidence – Whether State disproved Applicant’s alibi – Whether conviction unsafe or unsatisfactory – Criminal Code – Section 299 (1)
Cases cited:

Avia Aihi v. The State [1981] PNGLR 81
Beraro v. The State [1988-89] PNGLR 562
John Beng v. The State [1977] PNGLR 115
Jimmy Ono v. The State (2002) SC698
Richard Liri v. The State (2007) SC883
Vaii Rocky Maury (2001) SC668

Counsel:

Applicant , in person
Mr. J. Kesan, for Respondent

JUDGMENT

28^th October, 2016

1. BY THE COURT: On 17^th July, 2014, the Applicant was convicted by the National Court constituted by Yagi J of wilful murder of Pastor Arnold Moruwo on 15^th May 2010 at Kwongi 1 village, Asaro in Papua New Guinea pursuant to section 299 (1) of the Criminal Code. On 14^th August, 2014 he was sentenced to a prison term of 34 years less time spent in pre-trial custody.

Brief Facts

2. On 15^th May 2010 at about 6.00 pm the deceased and his 6 year old son by the name of Manuel Arnold were returning to the village from a trip to Lae.

3. The Applicant and other male family members suspected the deceased of causing the death of one of their family members through sorcery and on that day were waiting to ambush him. They were armed with bush knives and a home-made pistol.

4. When the deceased and his son arrived at a kaukau garden the Applicant and his four brothers attacked him. They struck him with the bush knives. The Applicant was seen striking the deceased on his shoulder and leg with a bush knife. They inflicted multiple wounds. The deceased fell to the ground and one of them shot him with the home-made pistol.

Applicant’s Defence

5. The Applicant denied the offence. He raised alibi. He was away in his wife’s village at the time the deceased was killed.

National Court Decision

6. The trial judge accepted the evidence of identification of Manuel. He rejected the Applicant’s alibi as it was not credible and found that he was one of the persons who killed the deceased.

Application for Leave to Review

7. As he was out of time to appeal against the conviction the appeal period of 40 days having expired on 26^th August 2014, on 27^th May 2015 he filed the application for review pursuant to section 155 (2) (b) of the Constitution. The application for review was filed 9 months after the appeal period had expired. Leave is, therefore, required.

8. He seeks leave. His explanation for the delay was that he is illiterate and did not have a lawyer to pursue the matter for him. The State opposed leave by submitting that the Applicant failed to advance convincing reasons for failing to lodge an appeal within time and allowing a further period of 9 months to go by after the time to appeal expired.

9. Further, there is only one ground of review pleaded in the application. It states “I did not know anything about the death of ARNOLD MORUWO. I am punished for nothing.”

10. The State submitted that this is not a ground of review. It is a statement of denial of any knowledge of the death of the deceased, a matter which was put to rest by the Court in finding him guilty.

11. In any case, it submitted that if the statement was meant to challenge the trial judge’s rejection of the Applicant’s alibi, it is prepared to respond to it at the hearing proper.

12. The question of leave is a discretionary matter and having considered the matter based on the criteria established in Avia Aihi v. The State [1981] PNGLR 81 we are not satisfied with the Applicant’s explanation. If he is illiterate, and this should not be taken as an offence to the Applicant, but in all fairness to others, it does not remove the obligation bestowed upon him to prosecute the matter. This includes engaging a lawyer in good time to attend to the matter on his behalf. We further find against him in relation to the further period of delay of 9 months.

13. We pause here to make a comment in passing that unrepresented Appellants/Applicants appearing before the Supreme Court poses real challenges to the Court. There appears to be a tendency for the Court to bend backwards in prisoner/appellant cases, hence compromising the strict compliance of Section 22 (a) and (d) of Supreme Courts Act. It is becoming apparent that two sets of standards appear to be employed which is a concern to this Court and in our view and must be curtailed in the interest of consistency and compliance. The matter which is now before us is no different and falls in that category of cases.

14. Having said that, we are satisfied that the statement set out in the application for leave to review is clear enough to convey to the State and the Court that the Applicant seeks to challenge the trial judge’s rejection of his alibi.

15. This raises the issue of safeness or satisfactoriness of the conviction. For this, we are further satisfied that the ground raises an arguable case. Finally, as the liberty of the Applicant is at stake, we are satisfied that it is in the interest of justice that he be granted leave to review the conviction.

16. For these reasons, leave is granted.

Principles of Appeal

17. We treat the review as if it were an appeal by applying the principles relevant to an appeal. Appeals against convictions are governed by Section 22 of the Supreme Court Act. The principles governing appeals against conviction are set out in John Beng v. The State [1977] PNGLR 115. The Court held:

“On an appeal against conviction pursuant to section 22(1) (a) of the Supreme Court Act, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed.”

18. We accept the State’s submission that the onus is on the Applicant to demonstrate or point out an identifiable error in relation to the findings of the trial judge before the Court can interfere with the findings: Jimmy Ono v. The State (2002) SC698 and Vaii Rocky Maury (2001) SC668.

19. Furthermore, it is acknowledged that the Supreme Court must not readily interfere with the assessment of the evidence and findings of the trial judge because the trial judge is in a better position to assess the demeanour of the witnesses. The Supreme Court can only interfere in clearest of cases: Richard Liri v. The State (2007) SC883.

Substantive Review

20. One of the elements of the offence of wilful murder under Section 299 (1) of the Criminal Code is the person who committed the act of killing. The State bears of the onus of proving this element. Where the defence denies the offence the State must bring evidence to identify the perpetrator.

21. In this case, the State has the onus of identifying the Applicant as one of the persons who killed the deceased. Manuel Arnold who is the son of the deceased was called by the State and gave evidence at trial.

22. The next witness was the wife of the deceased, Moruwo Andaia. Her statement was tendered by consent. Her evidence is not relevant to the question of identification. The statement is exhibit “B4”, which is in addition to the Applicant’s record of interview – exhibits “B1” and “B2”. A third witness Hondi Huwoi failed to turn up at trial.

23. The evidence by Manuel was crucial to the State’s case to prove identification of the Applicant. He was the key witness because he was the one who saw the killing and who was involved in the killing. He was six years old at that time and of tender age.

24. The Applicant did not object to Manuel giving evidence at trial. We accept the State’s submission that given that the witness was of tender age the trial judge gave consideration to the competency of the witness pursuant to the tests laid down by the Supreme Court in Beraro v. The State [1988-89] PNGLR 562.

25. Further, it is noted that the trial judge conducted an examination and found that the witness understood the nature of the oath and the consequences of lying under oath. He was satisfied that the witness understood what he was about to embark on and the consequences that might follow in the event he lies.

26. The trial judge also correctly, in our view, warned himself of the dangers inherent in accepting evidence of a child. In fact there is no issue as to the manner in which the trial judge dealt with the issue of competency of this witness who is of a tender age. From what we have observed, we are satisfied that the witness was competent to testify against the Applicant.

27. The real issue is whether Manuel’s evidence on identification of the Applicant was credible and reliable. Identification depends on the quality of the evidence of identification. The quality of identification is dependent on a number of factors, some of them being the identity of person, whether he is a stranger or known to the witness, lighting of the surrounding area and proximity of the witness to the crime or accused. If these factors support the quality of identification, the identification is good and reliable.

28. Then there is the case of recognition. It is said that recognition is better than identification. However, there is always a possibility that mistakes can be made in the identification of the person. The Court must remind itself and be aware of this inherent danger. The trial judge was cognisant of this when Manuel gave evidence.

29. Manuel said that he saw the Applicant struck the deceased on the shoulder and leg with a bush knife. He knew the Applicant because he lived in close proximity to him.

30. He saw the Applicant at about 6 o’clock in the afternoon. He observed the killing from a distance of 3 to 5 metres. The scene was clear of any obstruction. It was a kaukau garden. We further note that cross-examination by defence counsel further confirmed that Manuel knew the perpetrators. They were, in fact, his uncles from the father’s side.

31. The Applicant attempted to discredit Manuel’s evidence by putting out inconsistencies in his evidence and the statement he made to the police which was tendered as prior inconsistent statement, exhibit “D1”.

32. The defence said that one of the inconsistencies was the distance between Manuel and the Applicant. In his statement he said one of the Applicant’s accomplices by the name of Soti lifted him and put him 22 metres away from where his father was killed. In his evidence he said that he was 2 metres away.

33. The other was where in his evidence in Court Manuel said that before his father was shot, he prayed and bide him good-bye. But in his statement to the police, he said nothing about it. His explanation for the omission was that he did tell the police but they did not include it.

34. During cross-examination, he denied any suggestion that it was between 7 and 7:30 pm when he and his father walked down the path when the attack took place and that he ran away when his father was struck. He even denied a suggestion that he was coached to give evidence against the Applicant.

35. When we look at the kind of evidence that was before the trial judge, in essence the quality of the evidence of identification was good. Manuel was clearly certain that the Applicant was one of the persons who killed his father. In fact he was able to identify the others who were involved in the killing. He named them. They were his uncles from his father’s side. One of them was his name-sake. In our view it was more a case of recognition than identification.

36. The inconsistencies which the Applicant’s counsel pointed out during cross-examination did no damage to the totality of Manuel’s evidence. According to the trial judge, what was significant was that Manuel was firm and clear that he saw the Applicant as one of the persons who killed his father.

37. In addition, demeanour wise, the trial judge found Manuel as an impressive witness.

38. The trial judge rejected the Applicant’s alibi because his evidence lacked specifics and details. It was too general. He was unable to say what he was doing that day and who he was with on that day. He mentioned no names including those he listed on the notice of alibi. We agree. The trial judge’s observation about the specifics and details are vital to the alibi of the Applicant.

39. The Applicant’s evidence that he left his village since 2005 was rejected because that aspect was not put to Manuel for his response during cross-examination. It was considered a recent invention. Even his evidence that he did not return to the village even in times of death in the family was rejected because it did not make sense according to traditional and social norms of the community.

40. We note the record of interview contained no admissions but denials and further a claim of alibi. While that is accepted, the Applicant must back it up by calling witnesses to verify the claim. He did not. Except for his own evidence, this left the trial judge with virtually nothing to work on to find for him.

41. At the hearing of this review, he explained by submitting that the alibi witness who was his wife was threatened and as a result, did not attend the trial. We are not overly convinced by this explanation because it is belated. It should have been brought to the notice of the trial judge the moment a claim is made so that it can be dealt with forthwith.

42. The Applicant was represented by counsel and his counsel should have prepared well for his case including ascertaining and obtaining information of potential threats to witnesses. He should have passed on that information to the trial judge and sought appropriate protective measures for the witness or witnesses. This was not done.

43. We are unable to find any identifiable errors in the trial judge’s assessment of the evidence on identification and alibi. The findings he made should not be disturbed. We uphold the conviction as being safe or satisfactory. We dismiss the review.

Order

44. The orders are:

1. The review against conviction is dismissed.

2. The conviction and sentence are confirmed.

_____________________________________________________
Public Prosecutor: Lawyers for the Respondent