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Kawage v State [2022] PGSC 50; SC2241 (4 May 2022)

SC2241

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NOS 28 OF 2018

PETER KAWAGE
Appellant

V

THE STATE
Respondent

Waigani: Batari J, Geita J, Toliken J
2021: 25^th August
2022: 4^th May

CRIMINAL LAW – appeal – evidence – appellant convicted of murder following trial on wilful murder – whether conviction safe and satisfactory on the whole of the evidence.

CRIMINAL LAW – appeal – determination of – Supreme Court Act sections 6, 23 – application of – powers of Supreme Court on appeal – rehearing on
evidence before primary court – power of Supreme Court to make finding of facts which may or may not be the same as those found by the trial judge.

Held:

1. Section 6 of the Supreme Court Act and the principles to be followed in the rehearing of the appeal in essence, provide the legislative and procedural basis for the appellate court to determine an issue of fact or law irrespective of whether it was raised in the court below.

2. Where the trial judge has misconstrued the evidence or has put less emphasis or greater emphasis on evidence or has overlooked some evidence, this Court in revisiting the evidence given before the trial judge can make findings of facts which may or may not be the same as those found by the trial judge: Titus Makalminja v The State (supra); MVIT v John Etape [1994] PNGLR 596.

3. In a rehearing on the evidence given in the primary court, or fresh evidence and to draw inferences of fact from the evidence, the appellate court must carefully weigh up and consider the whole of the evidence in its conclusions that affirms or substitutes its own conclusions for those of the decision under appeal if it disagrees with them.

4. The primary court erred in overlooking the critical medical evidence on the cause of death relating to the points of entry and exit of the gun pellet which sharply contradicted the eyewitness account of how the deceased was shot while lying on the ground faced down with both arms spread out.

5. The conviction is quashed and a verdict of not guilty is entered.

Cases Cited

Biwa Geta v The State [1988-1989] PNGLR 153.
Director of District Administration -v- Custodian of Expropriated Property (Re Wangaramut) (No. 2) [1969-70] PNGLR 410.
James Pari v The State [1993] PNGLR 173
Jimmy Ono v The State (2002) SC698.
John Beng v The State [1977] PNGLR 115
John Kaina v The State [1990] PNGLR 292
MVIT v John Etape [1994] PNGLR 596
Nebare Dege v The State (2009) SC1308.
Peter Waranaka v Gabriel Dusava (2008) SC942
Titus Makalminja v The State (2004) SC726

Counsel

Mr Francis Kuvi, for the Appellant
Ms Theresa Aihi, for the Respondent

4^th May 2022

1. BY THE COURT: The appellant was charged and tried at Popondetta National Court for the wilful murder of one, Ronny Greyson Injiba, an escapee who was on the run. The Court upheld a ‘no case submission’ on the wilful murder charge but returned a verdict of guilty and convicted him on the alternative verdict of murder on 5 October 2017. He returned to Court on 20 July 2018 and was sentenced to 20 years imprisonment.
   

The Appeal grounds

2. The appellant appeals against his conviction on the following grounds:
   
   1. The trial judge erred in fact and law in convicting the prisoner on the uncorroborated evidence of identification of the prisoner.
      
   2. The trial Judge erred in convicting the prisoner by not taking into consideration the inconsistent testimony of the State witnesses.
      
   100. The trial Judge erred in law and fact in convicting the Prisoner when there was no evidence to suggest that it was the shot from the prisoner’s gun that caused the death of the deceased.
        
   4. The trial Judge erred in law and fact when he failed to consider the evidence that the State witnesses could not have possibly seen the person who fired the fatal shot given the obstacles blocking the views of the respective witnesses.
      
3. The appellant also appeals against sentence saying it is manifestly excessive in all the circumstances of the case in that the mitigating and extenuating circumstances warranted a lesser term of imprisonment than that which was imposed.
   
4. The Orders sought are that:
   
   1. The appeal be allowed; and
   2. The conviction be quashed, and the prisoner acquitted; and
   3. The sentence is set aside.
      

Background

5. The context to this appeal which also forms the common facts is this. Ronny Injiba, a fugitive from Biru CS Gaol at Popondetta was seen at SBS Compound. After a tip-off, police mounted an operation to demobilise him. Squad members from Popondetta Police Station and NCD surrounded his location, armed with police-issued firearms. Ronny tried to run but police had covered his possible escape routes. In the process, he was shot on the leg. He fell and laid on the grass faced down with both hands stretched out. Several policemen then fired shots into the air while a lone policeman aimed at and shot Ronny as he laid on the ground. He was taken to Popondetta Hospital where he was pronounced dead. The appellant was one of those policemen out to recapture Ronny.
   

Relevant laws and principles on criminal appeals

6. Under s. 23, the Supreme Court Act 1975 (the Act), the appellate court may set aside a verdict or conviction on appeal. The test is whether, “the verdict should be set aside on the ground that under all the circumstances of the case, it is unsafe or unsatisfactory,” (s. 23 (1)(a)), or a wrong decision is made on a point of law, (s. 23 (1) (b)), or there is a material irregularity in the course of the trial, (s. 23 (1) (c)): John Beng v The State [1977] PNGLR 115.
   
7. In Nebare Dege v The State (2009) SC1308 the Supreme Court clarified the principle in John Beng v The State in this way:
   

“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 ... 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.”

8. To determine whether the evidence or conduct of the trial has raised a reasonable doubt as to the safeness or satisfactoriness of the verdict in an appeal against conviction, s. 6 of the Act prescribes the extent to which the Supreme Court will review the decision of the primary court appealed against. Section 6 reads:
   

“6. Appeal to be by way of rehearing.

1. An appeal to the Supreme Court shall be by way of re-hearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court –

(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it, and

(b) to draw inferences of fact.

2. For the purposes of hearing and determining the appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.”

9. These provisions authorise the appellate court to rehear the evidence given in the trial court and where the interest justice in the case warrants it, to permit fresh evidence to be adduced, and to assess the probative value and inferences to be drawn from the evidence and consider the relevant laws so far as they affected such evidence before making its own conclusions for affirming or substituting those found in the decision appealed against.
   
10. In, Titus Makalminja v The State (2004) SC726 the Court explained the application of s. 6 and the power of the appellate court to review the evidence that was before the trial judge and make its own findings as follows:
    

“So, by virtue of this provision, this Court can exercise the powers, authority and the jurisdiction that would have been exercised by the trial judge. This means, this Court can revisit the evidence given before the trial judge and make findings of facts which may or may not be the same as those found by the trial judge. This Court can exercise these powers where the trial judge has misconstrued the evidence or has put less emphasis or greater emphasis on evidence, or has overlooked some evidence. This point was expressed in MVIT v John Etape [1994] PNGLR 596. The Supreme Court at page 601, said:

‘The appellant relies on s.6 of the Supreme Court Act, Ch.37, which provides for the Court’s powers on appeal. Section 6(2) provides that this Court has all the powers, authority, and jurisdiction of a judge exercising the jurisdiction of the National Court. In the circumstances, this Court may substitute a finding on evidence before the trial judge.’

This approach was broadly stated in the case of Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No. 2) [969-70] PNGLR 410. The Supreme Court in that case was hearing an appeal under s.38 of the Land Titles Commission Ordinance, 1962 – 1968, from the decision of a single judge who set aside parts of the decision of the Land Titles Commission. The appeal was on the ground that the decision was against the weight of the evidence. The Supreme Court while exercising powers similar to those granted under s.6 of the Supreme Court Act, held that the appellant was entitled to appellate court’s review of all the evidence, its consideration of their probative values, its evaluation on the inferences drawn from such evidence and its consideration of the relevant laws so far as they affected such evidence. The Supreme Court held that the appellate court was not simply to substitute its own conclusions for those of the decision under appeal if it disagreed with them.

This principle is expressed at the footnote:

‘Upon an appeal under s.38 on the ground that the decision under appeal is against the weight of the evidence, the appellant is entitled to the appellate Court’s review of that evidence, its consideration of its probative value, its evaluation of the inferences drawn from that evidence and its consideration of the relevant law so far as it affects that evidence. The appellate Court is not simply to substitute its own conclusions for those of the decision under appeal if it disagrees with them...’ (see also at page 416).

Then at page 439, the Supreme cited a passage from the decision of the Privy Council on the West African Court of Appeal decision in Ibrahimah v Gariba [1954] W.A.C.A 174.

‘An Appeal Court is not barred from coming to its own conclusion on the facts, and where a judgment has been appealed from on the ground of the weight of evidence, the Appeal Court can make up its own mind on the evidence, not disregarding the judgment appealed from, but carefully weighing and considering it ...’”

(Underlings added)

11. We adopt and follow these principles of law in this appeal. In our view, the application of s. 6 and the principles to be followed in the rehearing of the appeal as affirmed in Titus Makalminja v The State in essence, provide the legislative and procedural basis for the appellate court to determine an issue of fact or law irrespective of whether it was raised in the court below.
    
12. The rationale entails the notion that, the appellant is entitled to the appellate court’s review of all the evidence, the inferences to be drawn from the evidence and its consideration of their probative values, and its consideration of the relevant laws so far as they affected such evidence and draw its own conclusions: Director of District Administration -v- Custodian of Expropriated Property (Re Wangaramut) (No. 2) [969-70] PNGLR 410.
    
13. The duty of the appellate court to review the decision of the primary court is onerous. A rehearing on the evidence given in the primary court, or fresh evidence and to draw inferences of fact from the evidence is not a simple exercise by the appellate Court to affirm or substitute its own conclusions. The appellate court must carefully weigh up and consider the whole of the evidence in its conclusions that affirms or substitutes its own conclusions for those of the decision under appeal if it disagrees with them.
    

Parties’ positions

14. Mr Kuvi for the appellant urged this Court to find, the conviction is unsafe and unsatisfactory because the principal witness Julie Kijeni’s purported identification of the appellant she was seeing for the first time was tainted with inherent inconsistencies in her own evidence and with the other evidence surrounding the shooting. Counsel highlighted some of the consistencies and invited the Court to find, the primary judge failed to warn himself of the underlying dangers involved in convicting on such evidence. Counsel relied on, John Beng v The State [1977] PNGLR 115 and Jimmy Ono v The State (2002) SC 698).
    
15. Ms Aihi for the State submitted, the prosecution has proven beyond reasonable doubt, all the elements of the charge of murder and in particular, the element of person by the strong identification evidence of Julie Kijeni.
    
16. It was the State’s contention, that the primary court need not warn itself of the dangers of convicting on the uncorroborated identification evidence of one witness. There is no rule of law requiring such compliance. Hence, a failure to apply the caution will not of itself constitute an error of law, applying the principle in, Biwa Geta v The State [1988-1989] PNGLR 153.
    
17. Counsel argued, it was open for the trial judge to conclude from the whole of the evidence and inferences drawn from the facts, that Julie Kijeni gave uncontradicted and reliable evidence. Her identification of the appellant was not from a fleeting glance. The witness had ample time and opportunity to observe the person she was identifying in broad daylight. The accused stood out as the lone person who aimed his firearm and shot at the deceased whilst the other policemen fired shots from their guns into the air.
    

The Evidence

18. The evidence before the primary court comprised both oral and documentary evidence. The State relied on the oral evidence of three witnesses. The documentary evidence included the appellant’s Record of Interview in, ‘Exhibit A’ and the medical Post-mortem Report in, ‘Exhibit B’. The appellant did not give evidence or call evidence.
    
19. The first State witness, Julie Kijeni testified, that between 7.00am and 9:00am she was at her house at SBS Compound with her brother, Benson. The deceased, Ronny was at the road junction drinking with one, Danny Lapa. Her brother left the house and joined the two men. Some 15 minutes later, a brown 10-seater vehicle sped up and she heard gun shots. She stood under the house, and noticed Ronny fall onto the ground face down. He also had his both hands stretched out.
    
20. Julie said some eight policemen stood to the right-hand side of Ronny and fired shots into the air whilst one aimed directly at Ronny and shot him. The person who shot Ronny wore a blue round neck shirt and ‘long pants; police uniform’. She had not seen the accused before and that she was seeing him for the first time at the scene. When she enquired, her neighbors told her he was a policeman. She pointed out the accused in the Dock as the person who shot the deceased.
    
21. Sharon Korima was the State’s second witness. The crux of her story is that she was at SBS Compound while some young boys were present at the road junction. One of them tried to flee but police surrounded the place and shot him on his leg, and he fell. From the veranda of her house, she saw three policemen surround Ronny, pointing their guns at him. After a count of three, they fired shots into the air. Ronny was then taken away by police.
    
22. Sharon testified that Ronny was still alive but could not walk by himself to the vehicle because he was drunk. She knew Ronny as a relative. The witness also spoke of not knowing any of the policemen at the scene because they were all policemen from Port Moresby.
    
23. The third witness, Jacklyn Yaleba spoke of being present at her house with her baby. She the deceased she knew as Ronny Whitey fleeing to their area. She retreated into the room and saw through the window, the deceased running towards their toilet and across to Samson Atume’s fence. The police were there so, he ran to Sharon’s house. She then heard a gunshot.
    
24. Shortly after, Ronny came limping towards their area and fell on the grass. Policemen then surrounded him and on counted of three, they fired gunshots. After the gun shot, she saw blood stain on Ronny’s back shoulder. She did not see who shot Ronny.
    
25. The appellant did not give evidence. His Record of Interview contained general denials and the version of being at the scene after the shooting. He had joined other policemen to demobilise an escapee and the vehicle dropped him off near SBS Compound. He made his way past Banglo River. From some 60 meters, he heard the first shot and later rapid shots. Arriving at the scene, the deceased was lying on the ground. Policemen who were present asked him to open the vehicle door, they transferred the deceased to the vehicle and then to the hospital.
    
26. The medical evidence was based on the post-mortem findings of Dr. Nurre Badia, a Specialist Surgeon. The medical evidence stated:
    

External Findings:

1. Exit wound found on left lateral chest wall;
2. Entry wound on right lateral chest wall. Both holes exhurning blood;

100. Entry wound on right lateral thigh near the knee exiting through inner thigh.

4. Small wounds on the left lower leg.
   

Internal:

Bullet entered the right Chest wall reaping through the right lung, crossing the Presenter Medias forum through the great Vessels (aorta & vena cava) to the left chest Cavity.

It also reaped the left lung and exit through the left chest wall and out.

Both lungs were severely damaged with sudden Hemopneumothorax (free air and bleedings).

Conclusions

The cause of death was due to bilateral hemopneumothorax and dissection of great Vessels by the butler.

Considerations

27. As stated earlier, the Appellant was charged with wilful murder to which he pleaded not guilty. He was convicted on the alternative verdict of murder following a no case submission.
    
28. The combined effect of the grounds of appeal as set out earlier are asserting that the conviction was/is against the weight of the evidence. The principal contention is that the appellant was convicted on insufficient evidence of identification.
    
29. The evidence sustaining the murder conviction hinged on the identification evidence of Julie Kijeni. The primary judge found the appellant was at the scene. His Honour assessed and made conclusions on the accuracy and reliability of Julie Kijeni, as follows:
    

“Is her evidence enough to be belief? The evidence is that the incident happened in broad daylight. It was not raining, it was not dark, there was nothing to impair view of what was going on, and so she saw things clearly. The only factor that is against her is that she saw him for the first time then. This is not a case of – however, this is not a case of a fleeting glance. She observed for some time. In the end result, as I have indicated already, she observed for a while and it was clear broad daylight and without any further evidence – without any further contradicting evidence, I would have to accept the story of Julie Kijeni, that she saw the accused at the scene.

The accused was entitled to exercise his right to remain silent but how was the accused to challenge Julie’s evidence? The cross-examination had failed to discredit her story. She stuck to her story that she did see the accused at the scene of the crime. The next issue – the next question is; did Julie Kijeni correctly and positively identify the accused as the person who shot Ronny? As discussed in the first issue, Julie’s testimony was tested in cross-examination and she stood her ground in her evidence, that she saw the accused who shot Ronny. In the end result, again, I am satisfied beyond reasonable doubt that the accused shot Ronny which caused his death.”

30. It is settled, that where in a criminal trial, the identification of the accused person is the central issue, and where identification is made by a person who is either a stranger to or a casual acquittance of the accused person, it is the duty of the trial judge to warn himself or herself to treat the evidence of identification with care specifically –
    
    1. to be very cautious in concluding that identification has been established, and
    2. to be satisfied that the identifying witness is not only honest in his evidence but also accurate.
       
31. We are also reminded, in assessing the evidence on identification, the proper evidentiary approach in a criminal trial may be likened to a bundle of sticks which might be individually broken but not collectively. In like manner, the proper approach is to look at the whole of the evidence and to consider whether the charge has been proven beyond reasonable doubt. When a claim is made that a verdict is unsafe and unsatisfactory, an appellate court judge does not have an option but a duty to consider the whole of the evidence, arduous though that may be in a case such as the present: James Pari v The State [1993] PNGLR 173.
    
32. Whilst it is abundantly clear from the circumstances of this case, that the appellate court may reverse a finding based, expressly or inferentially, on demeanour of a witness there must, however, be something that points to “gross error manifest on the findings of fact based on the evidence before the Court.”: Peter Waranaka v Gabriel Dusava (2008) SC 42.
    
33. This is for the obvious and oft cited reason that the trial judge has the advantage of a hearing and observing a witness when giving evidence also heed to the caution that where the credibility of a witness is raised on appeal, the personal observations experience by the trial judge is almost invaluable. In John Kaina v The State [1990] PNGLR 292 Woods J stated:
    

“Whilst it is quite clear that an appellate court can make up its own mind on the evidence it must still be satisfied that the trial judge has erred in his analysis or assessment of the evidence. And an appeal court must never forget the obvious; that where the judge at first instance has had the opportunity of seeing the witnesses, where it turns on the matter of credibility, where they have been cross-examined and where he has deliberately come to a conclusion as to which side has given the correct version, it is very difficult to induce a court of appeal to differ from the decision of the judge at the first instance.

As Barwick CJ said in Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122 at 126:

‘The case, in my opinion, is another instance of the tendency of appeal courts to exercise their undoubted power to reverse a primary judge merely because they hold a view of the facts different from the view he has taken, a view not unreasonable in the circumstances of the case. The appellate court should restrain its use of its power to those cases in which it can confidently be said that the primary judge was wrong in his conclusions of fact.’

We as a court of appeal should be circumspect in interfering with judgments of trial judges where experience is almost invaluable. The transcript is a poor substitute for presiding throughout a trial.” (Underlying added)

34. In this case, upon a careful review of the whole the evidence and inferences to be drawn, we are satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict. As we will shortly demonstrate, the conviction is flawed in two basic respects: (i) it was/is against the weight of the evidence, and (ii) critical evidence against the prosecution case was overlooked.
    

Whether the identifying witness was accurate and reliable.

35. With respect, the primary judge’s conclusion, that: “without any further contradicting evidence, I would have to accept the story of Julie Kijeni, that she saw the accused at the scene” is incontrovertibly based on glaring inconsistencies and unreliability of the evidence of the principal identifying witness. Greater emphasis being placed on the evidence of Julie Kijeni meant an equally compelling evidence and inferences from the evidence of State witness, Sharon Korima and Jacklyn Yaleba were overlooked.
    
36. Julie Kijeni said she stood some 30 to 40 meters away from the person she was observing. Sharon Korima said she stood 6 to 9 meters from the scene. Jacklyn Yaleba was also positioned about the same distance. This evidence was not disputed. Thus, Sharon and Jacklyn, were closest to where the police shot Ronny. They had the greater advantage of observing the shooting from a very close distance.
    
37. Both spoke of hearing the policemen count to three before discharging their firearms. Sharon testified that she did not recognize any of the policemen because they were all from the NCD. She also said Ronny was still alive when police put him in the vehicle after the shooting. Jacklyn said she saw blood on the back shoulder of Ronny immediately after the shooting. The inferences from this support both witnesses’ story that they stood closest to Ronny when the police shot him while he was lying on the ground.
    
38. Yet, neither witness spoke of seeing anyone firing at Ronny. Their evidence would be more reliable. The fact that Julie was observing from a long distance itself reduces the degree of her accuracy and reliability.
    
39. Furthermore, there is no explanation why Julie’s evidence was preferred over that of Sharon and Jacklyn. It is trite that where there is a variation or inconsistency in the evidence of the witnesses, the trial judge is obliged to give reasons why he or she prefers the account of one witness over the other.
    
40. There is also confusion on where and how the policemen stood in relation to the deceased. Julie said all the policemen positioned themselves on the right side of the deceased. The trial judge however found the policemen stood around the deceased, consistent with the evidence of Sharon Korima and Jacklyn Yaleba. Sharon was emphatic in her evidence that the policemen stood around the deceased in a circle. Did Julie lied about all policemen standing to one side of the deceased?
    
41. These confusions are deepened by the differing numbers of those present. Sharon mentioned only three policemen. Julie mentioned at least eight. In cross-examination she said it could be more than eight. That is a crowd. The trial judge accepted her version.
    
42. That presents the obvious question as to how Julie was able to pick out the accused from a crowd? That is crucial because the lesser the number of persons amongst whom the person to be identified was being purportedly identified, the greater the degree of accuracy and reliability of the identifying witness observing from some 40 meters away.
    
43. True, the witness described the appellant as wearing a blue round neck shirt and a police type trousers. Her failure to say whether the appellant was the only one dressed in that manner and from where amongst the crowd, the appellant stood in relation to the deceased and in relation to her, did not improve her reliability. Too, she did not clarify whether the men stood together or stood in a line. The omission is crucial. It would improve her reliability if she was precise on where the appellant stood amongst a group of policemen similarly armed with the same-type firearms.
    
44. The unreliability of the identifying witness manifested in her wavering responses to questions in-chief, cross-examination and from the bench. Julie testified, she was seeing the accused for the first time and that she had not known him before. The primary judge asked her again and again as to how she could say with certainty, it was the appellant who shot the deceased, she initially gave an incomprehensible answer at p 39, Appeal Book that:
    

“My brother told me that that is Ronny... the police... after that, my brother big brother...”.

45. Upon further probing questioning from the Bench, as to how the witness was able to positively recognize the accused amongst other policemen as the person who shot the deceased, she repeated her story:
    

“I saw him pointing his gun at him. ...... Because he got his gun pointed at him. I saw him do that.”

46. It became apparent then, that at the end of her evidence, the witness’s accuracy and reliability still hanged in the balance.
    
47. And in the absence of any special feature or event that would leave a lasting impression on the identifying witness and in the absence of any recent sighting of the accused, the Dock identification is not satisfactory substitute in the light of the caution in John Beng v The State (supra). Too, it was made some four years after the event when some physical bodily changes are expected. And in the absence of an identification parade or any other independent evidence, the Dock identification was/is inconclusive.
    
48. Given those glaring deficiencies in the identification evidence and the compelling inferences, the verdict should be set side on the ground that it is unsafe and unsatisfactory. There is a further compelling reason against the guilty verdict. Critical evidence was overlooked by the primary court.
    

Primary court overlooked critical evidence against prosecution case

49. The evidence the lawyers and the primary court overlooked is the medical evidence in Exhibit B which independently affirmed where on the body, the deceased was fatally shot. The medical external findings following a postmortem examination showed the deceased sustained a gun wound on the right lateral thigh near the knee exiting through the inner thigh and small wounds on the lower left leg. The fatal gun wound which led to extensive bleeding and death was located on the lateral chest area.
    
50. The external findings showed the bullet entered the right lateral chest wall and exited on the left lateral chest wall. The internal findings showed, the bullet entered the right-side chest wall reaping through the right lung, crossing through the great vessels, reaping through the left lung and exiting on the left side chest wall and out.
    
51. These medical findings incontrovertibly established, that the cause of death was due to severe damage to both lungs when a bullet from a gun traversed the chest from the right side to the left side in a straight line. The most compelling inference is that both the gunman and Ronny were upright standing, and that the gunman stood to the right side of Ronny, aimed at and shot Ronny at chest level in a straight line.
    
52. There is also a strong inference from the bullet path injury that both hands of the deceased were offline of the bullet. It is possible Ronny had his hands over his head in a surrender pose when police shot him.
    
53. These incontestable compelling inferences make Julie’s story highly improbable. It may be possible that the deceased was shot on the side as he laid on the ground. But there is no evidence that the deceased was lying down on his left side when the appellant was said to have shot him. The evidence is that the deceased was lying faced down with both arms stretched out when the appellant shot him from a standing position. If that is so, the bullet would enter the back and exit the front of the body. This version is sharply contradicted by the medical evidence. It is unreliable.
    
54. The medical evidence was before the primary court. It was overlooked. By virtue of s. 6 of the Supreme Court Act and applying the principles governing the practice of a rehearing of the evidence before the primary court, there is no room to argue, the issue of inconsistency between the medical evidence and identification evidence was not raised in the court below or raised by counsel at trial. That issue is not relevant to this appeal.
    
55. It is settled, this Court can revisit the evidence given before the trial judge and make findings of facts which may or may not be the same as those found by the trial judge. This Court can exercise these powers where the trial judge has misconstrued the evidence or has put less emphasis or greater emphasis on evidence or has overlooked some evidence. See, Titus Makalminja v The State (supra); MVIT v John Etape [1994] PNGLR 596.
    
56. The appellant said he arrived at the scene sometime after the killing. The state of the identification evidence in the light of the medical evidence makes the appellant’s story highly probable. It is not contradicted by any other evidence. Hence, the State has not disproved the appellant’s version beyond reasonable doubt.
    
57. In summary, the identification evidence with its inherent inconsistencies is completely displaced by the undisputed evidence the primary court overlooked in the medical findings in Exhibit B. That is a material irregularity in the course of the trial, occasioning a miscarriage of justice. The verdict and conviction should be set aside.
    
58. We will return a verdict of not guilty and acquit the appellant on the charge of murder.
    
59. The Court Orders that:
    
    1. The appeal be allowed; and
    2. The conviction is quashed, the verdict of not guilty is entered And the prisoner is acquitted.
    100. The appellant be discharge from prison forthwith.
         
60. Before we finish, there is a crucial aspect of the trial and this appeal that we ought to cover. First, it is apparent, this case was shoddily investigated and prosecuted. Members of the police and the public present at the scene including the policeman in charge of the operation were not called to give evidence. Second, State witness Sharon Korima was closest to the scene of the killing. She clearly gave guarded evidence so that she did not see who shot Ronny. Similarly, State witness Jacklyn Yaleba gave guarded evidence such that the truth about the killing appeared suppressed.
    
61. Third, the lawyers at the trial and before this appeal failed to bring to the attention of the trial judge and the appellate court the damning evidence against the prosecution case in “Exhibit B”. When the primary judge stated, “without any further contradicting evidence, I would have to accept the story of Julie Kijeni, that she saw the accused at the scene” it is clear that had the medication evidence on how the deceased was shot, been brought to his Honour’s attention, or had his Honour considered the full implications of the medical findings, the primary Judge would not have been free to convict on the discredited identification evidence. That is the critical evidence the trial court overlooked. It was the evidence the question of conviction on identification evidence of one witness, turned, resulting in a miscarriage of justice.
    

__________________________________________________________________
Francis Kuvi & Associates: Lawyer for the Applicants
Public Prosecutor: Lawyer for the Respondent