PNG Law Reports 1995
[1995] PNGLR 268
SC474
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
LUINGI YANDASINGI
V
THE STATE
Mount Hagen
Amet CJ Kapi DCJ Los J
25 July 1994
6 December 1994
EVIDENCE - Identification - Principles discussed.
EVIDENCE - Hearsay - Role of trial judge in admission of evidence - Duty to reject inadmissible evidence.
CRIMINAL LAW - Sentencing - Wilful murder - Weight given to factors of tribal fighting and payback - Imprisonment for life not excessive.
Facts
The appellant had been convicted of the wilful murder outside a church near Wabag. The deceased and others had gone to the church for a service in the morning. They sat near the church. The appellant came up and talked to them. He then walked up behind the deceased and attacked him with an axe without any warning. The deceased died instantly. The appellant was sentenced to life imprisonment. He appeals against conviction on the basis of lack of motive and lack of sufficient identification. He also appeals against the severity of sentence.
Held
1.       The appeal is not to be determined solely on lack of established motive. Identification is important.
2.       The quality of identification depends on:
(a)      Whether the witness knew the accused before the event in question.
(b)      The lighting conditions at the time.
(c)      The distance between the witness and the accused at the time of the event in question.
(d)      Was there any object which may have obstructed the view of the witness?
3.       Tribal fighting and payback killing in the Highlands are factors which may be taken into account in sentencing.
4.       To kill by surprise and with a lethal weapon such as an axe are relevant to the sentence.
5.       Obiter dicta: Occasionally, counsel do not make appropriate objections to evidence that is clearly inadmissible. Ultimately, it is the duty of a trial judge to ensure that such evidence is not admitted.
Counsel
E Batari, with C Inkisopo, for the appellant.
M Unagui, for the respondent.
6 December 1994
AMET CJ KAPI DCJ LOS J: The appellant was charged with the wilful murder of one Kuri Si at Par Catholic Mission station near Wabag on Sunday 28 December 1987.
The trial judge concluded that on the day the offence took place Mr Si and others had gone to Par Catholic Mission for a church service in the morning. They arrived early for the service, about eight in the morning, and were sitting down near the church. The appellant came up to them and talked to them. At this point, there was no evidence of any conduct on the part of the appellant which could be interpreted as being hostile toward the deceased. The appellant walked up behind Mr Si and suddenly attacked him with an axe without any warning. Mr Si died instantly. The trial judge found the appellant guilty of wilful murder and sentenced him to life imprisonment.
He appealed against conviction and severity of sentence.
The appeal against conviction is based on two grounds:
1.       That the conviction was and is unsafe and unsatisfactory as there was no evidence that the appellant had a motive to kill the deceased.
2.       That the conviction was and is unsafe and unsatisfactory as the State’s key witnesses were unsure of the identity of the deceased’s murderer.
Counsel for the appellant submitted that there was no evidence of any motive for the killing. In examination in chief, the deceased’s brother, Kairi Si, suggested that in a previous fight, the deceased shot the appellant’s father with an arrow and, as a result, he became paralysed (see record page 18). In cross examination, Kairi further explained that compensation was paid to the appellant’s father for the injury and that there was peace between the respective tribes (see record page 19). This witness suspects that the attack on the deceased was by the appellant because “deceased had shot Lungi Yandasingi’s father during tribal fight and accused at that time said he was tired of taking care of his father in the hospital”. We agree that this may well be speculative on the part of the witness, Kairi Si. However, we do not think that the result of this appeal is to be determined solely on this point. This leads us to consider the question of identification of the appellant at the scene of the crime.
Counsel for the appellant submitted that Kairi Si did not see the actual chopping of the deceased, because it is submitted, he only looked after the deceased was chopped. Counsel further submitted that there were many people who were around and were not called to support the evidence of Kairi Si.
The law on identification is well settled in this jurisdiction, and it is not necessary for us to refer to any authority or set out those principles again in our judgment. It is sufficient for the purposes of this case to simply state that the quality of identification will depend on:
1.       Whether Kairi Si knew the appellant before this trouble.
2.       The lighting conditions at the time.
3.       The distance between Kairi Si and the appellant at the time of the attack.
4.       Was there any object which may have obstruct the view of Kairi Si?
There is no question that Kairi Si knew the appellant well. The offence took place at about eight in the morning, and there is no suggesting that there was not enough light. When the appellant attacked the deceased, Kairi Si was nearby, and he only had to look up to see who actually attacked the deceased. The trial judge believed this witness and relied on him for identification. We do not find any error in the conclusion he reached. We would dismiss this ground of appeal.
Before we leave the question of conviction, we would like to comment on a matter which is not the subject of appeal. This relates to admissibility of hearsay evidence in the trial. In dealing with the evidence of the police witness, John Wasakolim, the trial judge said:
“The investigation officer states that he was first involved with the incident in 1991 when on information received he arrested the accused in March 1991. On receiving the information he had checked the police records for December 1987 which included the occurrence book and criminal register and was satisfied that the accused was the person referred to in these records. These records included the occurrence book and the criminal register which clearly made reference to the accused by name. Having arrested the accused he then said he checked on and interviewed the witnesses and he also interviewed the accused. In the interview the accused gave an alibi that he was in Lae. The investigating officer on the basis of that alibi travelled to Lae later that year and interviewed Joe Sawanda and stated that Joe Sawanda had said that the accused was not with him the 20th December, in other words Joe Sawanda did not support the alibi.”
First, the record in the occurrence book was inadmissible because the author of the record was not called. Secondly, the statement of Joe Sawanda that the accused was not with him on the day of the offence was also hearsay evidence and should not have been admitted. These matters were not raised on appeal, but we consider that it is important to point out to trial judges that sometimes counsel do not make appropriate objections to evidence that is clearly inadmissible. Ultimately it is the duty of a trial judge to ensure that no such evidence is admitted.
In relation to sentence, counsel for the appellant submitted that the trial judge gave undue weight to the fact of tribal fight and payback killing in the Highlands. We do not find any error in this. Having regard to the surprised manner in which the deceased was attacked and the use of a lethal weapon such as an axe, it cannot be said that this is an excessive sentence. We would dismiss this ground of appeal.
The formal orders would be: the appeal is dismissed, conviction and sentence of life imprisonment are upheld.
Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: Public Prosecutor.