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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO 23 OF 2016 & SC REV NO 38 OF 2016
JOHN KARO & PETER RIPO
Appellants
V
THE STATE
Respondent
Waigani: Cannings J, Geita J, Toliken J
2017: 15 December,
2018: 31 January
CRIMINAL LAW – appeals against conviction for wilful murder, Criminal Code, Section 299(1) – whether trial judge failed to give effect to presumption of innocence – whether trial judge failed to give effect to requirement that prosecution prove guilt beyond reasonable doubt – whether trial judge erred by failing to apply principles re convicting on basis of identification evidence – whether trial judge failed to have regard to inconsistencies in the State’s case.
These were appeals against conviction for wilful murder. The trial judge accepted the State’s version of events, which was that the two appellants were amongst a group of five or six men who in the early hours of the morning broke into the house of the deceased and his family, and killed the deceased by chopping him on the back of the neck with a bushknife and shooting him, with the intention of killing him. The trial judge relied on the evidence of the deceased’s wife and daughter who were in the house at the time of the attack, who identified the appellants as being amongst the group and identified one of the appellants as the person who chopped the deceased on the neck. Three grounds of appeal were raised: (1) error of law by failing to give effect to the presumption of innocence and failing to insist that the prosecution prove its case beyond reasonable doubt; (2) error of law by failing to apply the principles regarding identification evidence; (3) errors of fact and law by failing to have regard to material inconsistencies in evidence of the State witnesses.
Held:
(1) The trial judge did not reverse the onus of proof. He applied the correct standard of proof to the elements of the offence of wilful murder. Ground 1 was dismissed.
(2) The trial judge made some errors of law in treatment of the identification evidence, by failing to administer a self-caution regarding the risks involved in entering a conviction based on identification evidence and by failing to fully consider the question of the weight to be attached to evidence of an identification parade. Ground 2 was partially upheld.
(3) The trial judge made some errors of law in treatment of alleged inconsistencies in the evidence of the State witnesses, by failing to identify the alleged inconsistencies and explain why they were regarded as insignificant. Ground 3 was partially upheld.
(4) However the valid points made on behalf of the appellants did not make the verdicts unsafe or unsatisfactory. There was no major error on any question of law that would warrant setting aside the convictions. There was no material irregularity in the trial. There was no miscarriage of justice. The appeals were dismissed.
Cases cited
The following cases are cited in the judgment:
Alois Erebebe & Taros Togote v The State (2011) SC1135
Devlyn David v The State (2006) SC881
Glen Otto Kapahi v The State (2010) SC1023
Gordon Gala Junior v The State (2017) SC1629
Ilai Bate v The State (2012) SC1216
Mark Bob v The State (2005) SC808
Peter Waranaka v Gabriel Dusava (2009) SC980
The State v Henry Osare Kales (2001) N2115
APPEALS
These were appeals against conviction for wilful murder.
Counsel:
T Joseph, a lay advocate, for the Appellants, with leave of the Court
E Thomas, for the Respondent
31st January, 2018
1. BY THE COURT: John Karo and Peter Ripo were convicted by the National Court in a joint trial of one count of wilful murder under Section 299(1) of the Criminal Code. They were each sentenced to life imprisonment. They appeal against conviction.
2. Peter Ripo’s notice of appeal was treated by the Supreme Court Registry as an application for review. His matter was given a Supreme Court review file reference (SC Rev No 38 of 2016), rather than a Supreme Court criminal appeal file reference (such as, in the case of John Karo, SCRA No 23 of 2016). That was a mistake as he, like John Karo, appealed within 40 days after the date of sentence, which is compliant with the appeal period in Section 29 of the Supreme Court Act (Mark Bob v The State (2005) SC808). We deem Peter Ripo’s matter to be an appeal and deal with it in the same way that John Karo’s appeal is dealt with.
3. The appellants were convicted of the wilful murder of Ian Liriope at Tete settlement in the Gerehu area of the National Capital District on 6 November 2003. The trial judge found that the State had proven its case, which was that at 3.00 am the appellants were amongst a group of five or six men who broke into the house of the deceased and his family, and killed the deceased by chopping him on the back of the neck with an axe and shooting him, with the intention of killing him. The trial judge relied on the evidence of the deceased’s wife and daughter who were in the house at the time of the attack, who identified the appellants as being amongst the group and identified John Karo as the person who chopped the deceased on the neck. The appellants gave no evidence at the trial.
4. The key parts of the trial Judge’s reasoning, resulting in the guilty verdicts, are set out in the following passage of his Honour’s oral judgment (obtained from the transcript of proceedings, there being no written judgment):
Serah Liriope, the wife of the deceased, and daughter Bessie Liriope gave sworn evidence for the prosecution. Leo Yapri, police photographer, gave evidence on the photographs. Pato Nanadai Baundo also gave evidence on the identification parade. The identification parade was not contested and has been admitted into evidence. At the end of the trial, the only issue was whether the accused were involved in the attack. Both accused opted to remain silent so that is the issue that the court would have to consider against the evidence adduced by the State.
Relevant to the issue are witnesses Serah Liriope, Bessie Liriope and the identification parade evidence. According to Serah Liriope, she was attempting to escape through the window when the house was broken into, but she was grabbed by four youths who pulled her back into the house. She was then stripped and raped by the youths. While she was being raped, her husband was brought into her room and seated near her head as she was being raped. Then her husband fell onto the floor and she heard no more sound from him. It appears that he had died.
Serah identified the accused John Karo as the person who brought her husband into where she was. She knew John Karo because he was a member of a rugby touch team that the deceased was coach of. Witness, Bessie, was in her room at that time when she heard that her mother was being raped. She said she saw John Karo chop the deceased on the neck and a person by the name of Samuel shot her father three times with a gun then she saw her father being taken to the room where the mother was being raped.
She also stated that Peter Ripo was also there. He held a bush knife. The only lighting in the house was from a hurricane lamp. It was on the table in the living room during the break-in and the attack on the family.
Defence counsel submitted that there were a lot of discrepancies in the prosecution’s evidence as to the order proceeding in the house. It was also submitted that the lighting was not adequate.
I have considered the submissions. I am of the considered view that lighting in the house was sufficient, firstly, for the attackers to carry out the attack on the family and also for the witnesses to see who was in the house. Among the youths were persons that witnesses knew prior to the commission of the crime. The identification evidence of Serah and Bessie is further strengthened by the identification parade evidence. Police witnesses’ credibility was not affected in any way.
I am satisfied that the photographs and the identification were properly taken and properly conducted by the police witnesses. It was during the identification parade that each accused was identified by Serah and by Bessie. The two accused chose to remain silent so the court only has the prosecution’s evidence on identification to determine who was involved in the attack. The court finds that each accused, on the evidence, participated in the attack and the eventual killing of the deceased in the early hours of 6 November 2003. It was John Karo that chopped the deceased on the neck, as the evidence discloses. When this happened, Peter Ripo was there. Samuel shot the deceased with a gun. When this happened, Peter Ripo was also there.
There is no medical certificate of death but there is no dispute that the deceased died at that time and he died during the attack. On the evidence of Bessie Liriope, I am satisfied that John Karo chopped the deceased on the neck, as I have said, with an axe, with the intention to kill. Peter Ripo, as I said, was there when this took place and he did nothing to stop the killing of the deceased. He is by virtue of Section 7 of the Criminal Code equally liable.
In all the circumstances I find each of the accused guilty as charged.
REPRESENTATION
5. The appellants sought leave for a fellow prisoner at Bomana Correctional Institution, Mr Tande Joseph, to represent them at the appeal hearing. Mr Joseph is not a qualified lawyer but he has had legal training and has been granted leave to appear for fellow prisoners in other appeals. There was no objection by the respondent, the State, which was represented by Mr Emmanuel Thomas, of the Office of Public Prosecutor. We had regard to the considerations outlined by the Supreme Court in Gordon Gala Junior v The State (2017) SC1629 and granted leave to Mr Joseph to appear for the appellants.
GROUNDS OF APPEAL
6. The notices of appeal, considered together, raised three discernible grounds of appeal:
APPROACH TO APPEALS AGAINST CONVICTION
7. To succeed on an appeal against conviction an appellant must establish that:
8. In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from Sections 23(1) and 23(2) of the Supreme Court Act, which state:
(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 judgment 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.
(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
GROUND (1): ERROR OF LAW BY FAILING TO GIVE EFFECT TO THE PRESUMPTION OF INNOCENCE AND FAILING TO INSIST THAT THE PROSECUTION PROVE ITS CASE BEYOND REASONABLE DOUBT
9. Mr Joseph submitted that the appellants, like every person charged with a criminal offence, were entitled to the full protection of the law and in particular had the right to be presumed innocent, in accordance with Section 37(4)(a) of the Constitution, which provides that a person charged with an offence “shall be presumed innocent until proved guilty according to law”.
10. “According to law”, Mr Joseph submitted, meant that the State was obliged to prove the guilt of the appellants beyond reasonable doubt. We have no difficulty with those propositions. It is irrefutable that an accused person must be presumed innocent and can only lawfully be proven guilty if the court insists on the prosecution proving each element of the offence beyond reasonable doubt.
11. Mr Joseph submitted that the trial judge failed to give effect to the presumption of innocence by unfairly placing restrictions on cross-examination by defence counsel of State witness, Bessie Liriope. It is argued that the trial judge refused to allow defence counsel to cross-examine the witness in relation to the glass door she said was at the entry point to her bedroom. The witness had given evidence in chief that her bedroom had masonite walls and a transparent glass door and that when the group invaded the house she remained in her bedroom with the transparent glass door locked, which allowed her to look into the living room and see what happened to her father and identify the attackers, including the appellants who she recognised as they were local youths. She said that she recognised John Karo (who she called “John Murderer”), who chopped her father with an axe, and Peter Ripo who was holding a bushknife, and she identified them in the courtroom.
12. Mr Joseph submitted that the witness should have been cross-examined about the glass door. It seemed illogical to have a glass door in a settlement house and a glass door would only be in a shower room, especially in the case of this witness who was a teenage girl at the time, and her evidence was inconsistent with that of her mother. It was important that her credibility as an identification witness be tested as the core issue in the trial was identification. The appellants’ argument is that his Honour curtailed the defence counsel’s cross-examination, resulting in the appellants’ right to a fair trial being infringed. The argument is based on the following passage in the transcript, being cross-examination of the witness Bessie Liriope (the deceased’s daughter) by Peter Ripo’s counsel, Mr Ninkama; which followed cross-examination of the witness by two counsel who appeared for John Karo (Mr Kaluwin and Mr Geita):
Q: Your Honour, just some few questions. Now, witness, you just told the court that you were in your room. Am I correct to say that when you heard those shouts, you went into your room because you were scared?
A: No. As I have said, I normally go to church and I was a Christian believer faith at that time. So my belief was only in the Lord; I put my faith in the Lord.
Q: But before you went into the room, you were in the living room with your family, is that correct?
A: Yes, before going into the room, I was with my family.
Q: Okay, I want you to describe your room, your bed, where your bed is, and how far is your bed from the door, entrance out? I believe you had a door to the living room.
A: Okay, my room is made up of masonite and my bed is faced towards the door which I come out of the living room so my bed is a double bunk bed where I sleep at the bottom – at the down one and I was sitting on my bed and I could look easily through.
Q: How far is your bed to the door from your room to the living room?
A: My room is not that big, it is just from here to there. My bed was just – that is the window so my bed was there and this is my door so I could just look out the living room.
Q: You said your door was made from glass. Can you describe what sort of glass is it – yes, what sort of glass is it?
A: My door, the glass is just exactly like that one there.
HIS HONOUR: All right, how do you describe that, transparent?
MR KALUWIN: Clear transparent windowpane.
HIS HONOUR: Yes.
MR NINKAMA: So that glass would cover the entire door or just one section of the door?
A: It is the whole door, that door is made up of that glass, so I just open it and close it.
Q: Your Honour, if I may proceed?
HIS HONOUR: Sorry?
MR NINKAMA: If I may proceed?
HIS HONOUR: Yes.
MR NINKAMA: So, from what you told the court, is it correct that from inside your room, you saw all that was happening in the living room through that glass door, is that correct?
A: Yes, I could see all events that were taking place to my father, my mother and my two sisters while inside the room.
Q: Would you agree with me that that particular glass door would not be that clear or transparent enough for you to have a good view?
A: No.
HIS HONOUR: It is like that so do not try to change it.
MR NINKAMA: Now, in your room, when you went into your room, I would suggest to you that because of the shouting and what was happening outside, you took cover in the most further part of your room. What would you say, the corner of your room?
A: At that time I said I did not have any fear. I normally commit myself to the Lord so all I did, I was just praying because every morning when I wake up, I wake up early hours of the morning around 3 or 2 o’clock and I used to meditate to God.
Q: Did your mother not tell you to – “do not make any noise when you went into the room”, to keep quiet?
A: At that time I saw them like they were in fear, so what I did, I told my mum and my two sisters to – as I did not put in this statement but I can recall, I told my mum and my two sisters to follow me into my room but they did not want. I told them, we pray to God, God is the one, he is going to help us but they did not so I was the only in my room and praying.
Q: Thank you. You told the court that you saw Samuel shoot your father three times. Now, I put it to you – the question is – I put it to you that after Samuel shot your father, there was no other shots from within the house, am I correct?
HIS HONOUR: What do you mean?
MR NINKAMA: I will rephrase, your Honour. When you told the court - - -
HIS HONOUR: The thing about your defence is one of identification. So really the only questions you will ask is to clarify and try to see whether she properly identified, but to put to the witness, suggest that that is what you have been instructed, it would suggest that that is what you have been told by your client. So you have to be careful as to how you frame your questions because either your client was there and he has told you that this happened and this did not happen and you are putting that to the witness or he was not there and so you really cannot put anything to the witness. [Underlining added.]
MR NINKAMA: Thank you, your Honour, I will rephrase the question.
HIS HONOUR: Did he – what you should be concentrating on is getting her to explain her story clearly and properly.
MR NINKAMA: Now, witness, when you said Samuel, you mean Samuel Kopa, is that correct?
A: I identified him as Samuel, just Samuel.
Q: Samuel is not before the court today, is that correct?
A: Yes, he is not before the court.
Q: Your Honour, no further questions.
13. It is his Honour’s statement in the underlined paragraph that is argued to be a restriction on the cross-examination. We reject the argument. His Honour was actually assisting the defence counsel, warning counsel of the need for caution so as not to be seen to put questions to the witness about conditions within the house based on the instructions of the accused. If counsel was seen to be asking questions based on instructions as to conditions in the house, that would have the effect of creating an inference that the accused was in the house, which would tend to support the identification evidence that the witness had given. We consider that that is the appropriate way in which to regard his Honour’s statement.
14. We cannot see how his Honour’s remarks can reasonably be regarded as a refusal to allow counsel to cross-examine the witness as to the glass door. His Honour did not in any way curtail cross-examination. Quite the contrary. His Honour made a suggestion and counsel replied that he would rephrase the question. That was counsel’s decision. It was not the judge’s direction. Moreover, his Honour allowed the witness to be cross-examined by three separate defence counsel. We reject the contention that his Honour failed to give proper effect to the presumption of innocence. His Honour did not reverse the onus of proof.
15. The appellants also argued that the trial judge failed to insist that the prosecution prove its case beyond reasonable doubt. It is argued that his Honour failed to critically assess the evidence to the level of scrutiny required. Mr Joseph highlighted the passage of the judgment in which his Honour emphasised that the appellants had remained silent:
The two accused chose to remain silent so the court only has the prosecution’s evidence on identification to determine who was involved in the attack.
16. It is argued that that amounted to an adverse inference that was drawn against the appellants simply because they had exercised their constitutional right to remain silent, and that nowhere in the judgment did his Honour demonstrate a critical analysis of the prosecution’s evidence in its entirety.
17. We are not persuaded by these arguments. His Honour did not draw any adverse inference arising from the appellants’ silence. His remark that “the court only has the prosecution’s evidence on identification to determine who was involved in the attack” was a statement of fact. His Honour clearly regarded the two key State witnesses, the wife and the daughter of the deceased, as credible witnesses who were present at the material time and who identified the appellants as being involved in the home invasion and the attack on the deceased. His Honour noted that the State witnesses’ identification of the appellants in the courtroom was supported by evidence of an identification parade conducted soon after the incident in which both appellants had been identified as being amongst the group involved in the attack.
18. We note that his Honour did not expressly state that it was necessary for the prosecution to prove the elements of the offence of wilful murder beyond reasonable doubt. Nor did his Honour expressly state the elements of the offence. It would have been preferable for his Honour to state those things expressly. However, we are unaware of any authority that would support the proposition that a trial judge’s failure to expressly refer to the need for the prosecution to prove the elements of the offence beyond reasonable doubt is an error of law. We do not propose to regard his Honour’s failure in the present case to state what is fairly regarded as the obvious, as an error of law.
Conclusion re ground 1
19. We are satisfied that the trial judge did not reverse the onus of proof and did apply the correct standard of proof and that he applied it to the elements of the offence of wilful murder. We dismiss ground (1).
GROUND (2): ERROR OF LAW BY FAILING TO APPLY THE PRINCIPLES REGARDING IDENTIFICATION EVIDENCE
20. It is argued that the trial judge erred by not clearly setting out and applying the principles regarding entering convictions on the basis of identification evidence. In particular that his Honour erred by:
(a) not administering a self-caution;
(b) not taking into account that the incident took place in the dark;
(c) treating the identification evidence as recognition evidence without corroboration of prior contact between the appellants and the identification witnesses;
(d) placing too much weight on the identification evidence of Serah Liriope as she was in no position to see who the attackers were and what they did;
(e) failing to give consideration to the fact that five men had already pleaded guilty to killing of the deceased;
(f) failing to take into account evidence that after the attack the appellants were amongst a group of men of ethnically similar origin as the appellants (men from Goilala District) who were randomly arrested and required to undergo an identification parade.
21. These arguments are largely based on dicta of the Supreme Court in Ilai Bate v The State (2012) SC1216, a case in which a conviction for manslaughter was set aside because the trial judge made errors of law regarding the identification evidence. The Court stated:
It is settled law as explained by the Supreme Court in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 that there is an inherent danger in convicting an accused on the basis of identification. The trial judge should by his or her reasons for decision demonstrate that that danger is recognised and heeded. This is done by administering a ‘self-caution’. It is the sort of caution that a judge would give to a jury in jurisdictions that have trial by jury. In PNG we have no juries. The judge is the tribunal of fact as well as of law. So the judge is expected to caution himself or herself as a matter of self-discipline and as a means of demonstrating through his or her judgment that the principles on identification evidence have been applied.
The trial judge should indicate that the court is mindful of the risks involved but that if the quality of the identification evidence is good the matter should proceed to verdict; and if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. The judge’s reasons should show an awareness of the possibility that an honest witness can be mistaken and still be convincing. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.
22. There is merit in the appellants’ argument (a). A trial judge should issue a self-caution as to the inherent danger in convicting an accused on the basis of identification. The trial judge should in the judgment on verdict, whether the judgment is delivered orally or in writing, demonstrate that that danger is recognised and heeded. It is a good way of imposing self-discipline in the decision-making process and of demonstrating that the principles on identification evidence have been applied. In this case the trial judge did not administer a self-caution and did not mention the inherent danger in convicting the appellants based on identification evidence alone. We uphold the submission of Mr Joseph that his Honour’s failure to do so was an error of procedure and of law. Mr Thomas, of the Office of Public Prosecutor, for the respondent, actually conceded this point. However he hastened to add – and we agree – that that does not necessarily mean that the appeals should be upheld and the convictions quashed.
23. We reject argument (b) – that the trial judge did not into account that the incident took place in the dark – as his Honour noted the submissions of defence counsel that the lighting was not adequate but formed “the considered view that lighting in the house was sufficient, firstly, for the attackers to carry out the attack on the family and also for the witnesses to see who was in the house”. We consider that there was ample evidence that it was the family’s practice to leave a hurricane lamp on in the living room throughout the night, and that the lamp was on at the material time, shedding sufficient light for the two key State witnesses to identify the appellants as being amongst the group of intruders. We find no error in his Honour’s treatment of the issue of whether the lighting was sufficient to enable an accurate identification of the intruders.
24. We reject argument (c): that an error was made in treating the identification evidence as recognition evidence without corroboration of prior contact between the appellants and the identification witnesses. There is no rule of law or practice that such corroboration is necessary in a case of identification evidence, including recognition evidence (Alois Erebebe & Taros Togote v The State (2011) SC1135, The State v Henry Osare Kales (2001) N2115). As the Court emphasised in Bate, it is the overall quality of the identification evidence that is the significant criterion, not whether it is corroborated.
25. We reject argument (d): that the trial judge placed too much weight on the identification evidence of Serah Liriope. We consider that Serah Liriope, the wife of the deceased, gave clear and precise evidence identifying the appellants as being amongst the group that rushed at her as she stood in the living room, having been awoken by a disturbance at her neighbour’s house. She stated that she knew both of them very well as they were local residents, and Peter Ripo was involved with her husband’s touch rugby team. She recognised John Karo who was known locally as “John Murderer”. She stated that four of the intruders dragged her by the legs into her bedroom where she was stripped naked and raped by one of them, named as Laiam Morgan. She stated that other members of the group including John Karo and Peter Ripo forced her husband into the room and she believes that it was in the bedroom that her husband was chopped in the neck. She heard that happen but did not see who did it. Prior to this she had heard a gunshot that appeared to come from the living room. Serah Liriope was subject to cross-examination by two defence counsel and she did not shift in her positive identification of the appellants, and she identified them in the courtroom. We consider that her evidence was strong and the trial judge was entitled to rely on it and his Honour gave it the weight it warranted.
26. We reject argument (e): failing to give consideration to the fact that five men had already pleaded guilty to killing of the deceased. It has not been brought to our attention that this matter – if it is true – was formally raised at the trial. We note that there was some attempt in cross-examination of Serah Liriope to introduce evidence about a prior trial. However the trial judge, properly, in our view, interposed and suggested that that matter was irrelevant and the defence counsel conceded the point and did not press it. His Honour properly remarked that in a case of a group attack the fact that two or three members of a group of five or six have faced trial and been convicted is of no relevance to a second trial in which another two or three people are charged with the same offence, especially where, as in this case, the critical issue at the second trial is identification of the accused.
27. We find some merit in argument (f): failing to take into account evidence that after the attack the appellants were amongst a group of men of ethnically similar origin as the appellants who were randomly arrested and required to undergo an identification parade. We consider, with respect, that the learned trial judge should have considered in greater detail the weight to be attached to the identification parade and the evidence of how the parade was conducted and how the Goilala men were selected. His Honour noted that “the identification parade was not contested and has been admitted into evidence”. However, that is not strictly speaking an accurate summation of the defence case, which was that no weight should have been attached to the evidence of the identification parade (at which both Serah and Bessie Liriope identified the appellants) as it was unfairly conducted, beginning with way in which Goilala men at Tete settlement were rounded up at random.
Conclusion re ground 2
28. We uphold two of the six arguments about errors of law in treatment of the identification evidence: failure to administer a self-caution and failure to properly consider the question of the weight to be attached to evidence as to the identification parade. Ground (2) is partially upheld.
GROUND (3): ERRORS OF FACT AND LAW BY FAILING TO HAVE REGARD TO MATERIAL INCONSISTENCIES IN THE EVIDENCE OF THE STATE WITNESSES
29. It is argued that the trial judge ignored material inconsistencies in the evidence of the two key State witnesses and failed to assess the significance of the inconsistencies and give reasons for regarding them as significant or insignificant.
30. Mr Joseph submitted that the evidence was inconsistent in the following respects:
(a) On the one hand, Serah Liriope said there was only one gunshot. On the other hand, Bessie Liriope said there were three.
(b) On the one hand, Serah Liriope said that the deceased was carried into the bedroom and placed next to her as she was being raped. On the other hand, Bessie Liriope said the deceased walked slowly into the bedroom, unassisted.
(c) On the one hand, Serah Liriope said that she was at the window of her bedroom trying to escape when four youths entered the bedroom and dragged her away from the window. On the other hand, Bessie Liriope said that her parents and two younger sisters were in the living room when the youths entered the house.
(d) On the one hand, Serah Liriope and Bessie Liriope identified six suspects at the identification parade. On the other hand, Serah Liriope and Bessie Liriope named only four of the six (including the appellants) in their oral testimony at the trial.
(e) On the one hand, Serah Liriope said that the house was set on fire after she fled. On the other hand, Bessie Liriope said that kerosene was poured on the deceased and he was set on fire before her mother was taken away.
(f) On the one hand, in her police statement Bessie Liriope said that the hurricane lantern was on the floor. On the other hand, in her oral testimony she said that the hurricane lantern was on a table in the living room.
(g) On the one hand, Serah Liriope said four youths grabbed her as she was escaping, and raped her. On the other hand, Bessie Liriope said that Laiam Morgan pulled her mother into the bedroom and raped her.
(h) On the one hand, in her police statement Bessie Liriope said that the deceased was shot and died instantly. On the other hand in her oral testimony she said that her father was shot three times, yet was able to walk into the bedroom.
31. We find merit in the contentions underlying ground 3. There are some generally accepted principles to apply whenever it is contended by one party (particularly the defence) in a criminal trial that the evidence of the opposing party (particularly the State) is inconsistent. These include:
32. We agree that the trial judge should have considered in more detail the alleged inconsistencies in the evidence of the two key State witnesses, as the defence counsel did make the same sort of arguments as those outlined above in the course of their closing addresses on verdict. His Honour noted that the defence counsel had submitted that “there were a lot of discrepancies in the prosecution’s evidence as the order [of] proceedings in the house ...” His Honour did not, however, set out the alleged discrepancies or inconsistencies to the extent that was required. What is the significance of that omission? We comment on the alleged inconsistencies as follows:
(a) We consider that the number of gunshots was insignificant, given that the incident occurred in November 2003, 11 years before the trial in December 2014, and that the two witnesses were in different rooms at the time of the shot(s).
(b) Likewise, whether the deceased was carried into the bedroom or walked slowly is not a material inconsistency.
(c) We consider that there was no inconsistency between Serah Liriope’s evidence that she was at the window of her bedroom trying to escape when four youths entered the bedroom, and Bessie Liriope’s evidence that her parents and two younger sisters were in the living room when the youths entered the house.
(d) We consider that there was no inconsistency between Serah Liriope’s oral testimony in which she named four men, who she recognised as being involved, and Bessie Liriope’s evidence, which was in fact the same. The fact that both of them had identified six suspects at the identification parade but only named four of them at the trial is inconsequential and is not an instance of inconsistent evidence.
(e) We consider that there was no inconsistency between Serah Liriope’s evidence that the house was set on fire after she fled and Bessie Liriope’s evidence as to kerosene being poured on the deceased and the house set on fire. Bessie Liriope did not state that that happened before her mother was taken away.
(f) The alleged inconsistency between Bessie Liriope’s police statement and her oral testimony as to the positioning of the hurricane lamp is insignificant. What is more important is that she always maintained that there was a lamp on and it shed light inside the house. That evidence was consistent with the evidence of Serah Liriope.
(g) There was no inconsistency between Serah Liriope’s testimony that four of the youths grabbed her as she was escaping, and dragged her into her bedroom where one of them, Laiam Morgan, raped her, and Bessie Liriope’s evidence that Laiam Morgan pulled her mother into the bedroom and raped her.
(h) There was an inconsistency between Bessie Liriope’s police statement that the deceased was shot and died instantly and her oral testimony that the deceased was shot three times, yet was able to walk into the bedroom. She was cross-examined about that and she maintained that her oral testimony was truthful. She adequately explained the discrepancy. It is evident that she gave a statement to the police, which might not have been accurately recorded. Moreover her police statement was given when she would still have been in a state of shock over what happened.
Conclusion re ground 3
33. We uphold the argument that the trial judge should have expressly addressed the alleged inconsistencies in the evidence of the State witnesses and explained why they were regarded as insignificant, and to that extent ground 3 is partially upheld. However, if his Honour had addressed them expressly, the conclusion would have been reached that the number of inconsistencies was small and the inconsistencies that existed were insignificant.
CONCLUSION
34. We have dismissed ground 1 and partially upheld grounds 2 and 3. We have found merit in some of the appellants’ arguments about the degree of detail to which the trial judge gave reasons for the verdicts. However none of the valid points made on behalf of the appellants persuade us that the verdicts of guilty are unsafe or unsatisfactory. There was no major error on any question of law that would warrant setting aside the convictions. There was no material irregularity in the trial. There was no miscarriage of justice. The appeals must be dismissed.
(1) The appeals are dismissed.
(2) The decision of the National Court is affirmed. ____________________________________________________
Public Prosecutor: Lawyer for the Respondent
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