Unreported Supreme Court Decisions
SC561
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SC REV NO 45 OF 1996
BETWEEN
JOE FOE LESLIE LESLIE - APPELLANT
AND
THE STATE - RESPONDENT
Waigani
Amet CJ Kapi DCJ Los J
15 July 1997
7 August 1998
CRIMINAL LAW - Appeal against conviction - Appellant a prison escapee - Appellant convicted and sentenced for wilful murder - In concert unlawfully killed a policeman on lawful duties - Unlawful use of firearm - Section 7 and 8, Criminal Code Act - Appeal dismissed and conviction and sentence confirmed.
The appeal on conviction was dismissed.
Held
(1)      Grounds of appeal were not made out.
(2)      Either the appellant discharged the firearm or another member of his party with the knowledge and complicity of the appellant to warrant the application of sections 7 and 8 of Criminal Code to return a verdict of guilty against the appellant.
(3)      Appeal dismissed, conviction and sentence confirmed.
Counsel
K Koeget for the Appellant
C Manek for the Respondent
7 August 1998
AMET CJ KAPI DCJ LOS J: The Applicant was found guilty of wilful murder following a trial, convicted and sentenced to life imprisonment on 3rd October 1996.
He has filed appeal against his conviction on the following grounds:
(a)      that the trial judge erred in law when he convicted the appellant on the charge of wilful murder by virtue of section 7 of the Criminal Code because there was no evidence that he aided and abetted the other person to kill the deceased.
(b)      that the trial judge erred in law when he convicted the appellant of the offence of wilful murder by virtue of section 7 of the Criminal Code because there was no evidence that he acted in concert with the other man to shoot and kill the deceased.
The State’s case was that the appellant, a prison escapee was sighted at Siraka settlement at the house of one Tony Miro at about 9 pm on 19th October 1994.  Following a tip-off a squad of policemen from the Waigani Police Station was sent to the settlement and surrounded the house the appellant was said to be in.  The deceased constable Lewa Lewa approached the house and ascended the steps and called out to the appellant to surrender and come down.  The State alleged that the Appellant shot Constable Lewa Lewa with a gun with intention to cause his death and escaped.
The Appellant ran the defence of mistaken identity and alibi.  He admitted being at Gerehu stage 6 hiding in the bush after his escape and that evening he had walked to Siraka but did not go to the house in question.  In his un-sworn statement he said he had gone to Gerehu stage 5 and was drinking with some friends until day break and went to sleep the next day until the afternoon when he went into the streets and was informed by some boys about the killing.  He was surprised when he learnt of this.
The learned trial judge disbelieved the appellant’s defense of alibi and found that he was present at the Siraka settlement on the night of 19th October 1994 and was sitting on the veranda of Tony Miro’s house when the deceased was shot dead.
The Appellant has not taken issue with these findings of facts by the trial judge and has conceded that there was ample evidence to support the finding that the appellant was present sitting with other men on the veranda of Tony Miro’s house when confronted by the police.
The learned trial judge however was not satisfied that the appellant had a gun and had fired a shot at the deceased.  The trial judge was however satisfied that the appellant was with at least another person on the veranda and that the gun could have been fired by the appellant or the other person and that whoever shot the deceased intended to cause his death.  The trial judge concluded that there was no evidence that the appellant had a gun at the time he was sitting on the veranda, but concluded nevertheless that there was a gun and one of those on the veranda had shot the deceased with it.  His Honour concluded that although he could not be satisfied that the appellant shot the deceased, he was equally responsible as a principle offender under section 7 or section 8 of the Criminal Code by association and common purpose to prevent this arrest.
The Appellant has submitted that notwithstanding the acceptance of the findings of facts that he was present on the veranda of the house at the scene of the killing, there was no evidence that he and the other man went up to the veranda together and that they were seen talking before and at the time when the deceased called out for the appellant to come down.  There was no evidence that they were friends, it was submitted.  It was contended that it was possible that this other man was unrelated to the appellant and had gone to see the video at the house.  Furthermore it was submitted that there was absolutely no evidence that the appellant had offered assistance to this other man to shoot and kill the deceased.  There was no evidence that this other man sitting next to the appellant had a shotgun and that he used this gun to shoot the deceased.
Consequently, it was submitted, mere presence at the scene of a crime is not sufficient to create criminal liability and that there must be participation or encouragement in the act that constituted the offence.  Presence at the scene must be willed and not accidental and with the intention of encouraging or assisting the commission of the crime charged.  Mere presence at the scene of the offence does not in itself render that person an aider and an abettor.
It was finally submitted that there is no evidence that the Appellant and another man were acting together in concert or aiding and abetting one and other when the deceased was shot and killed.  Consequently the conviction in that regard is also unsafe and unsatisfactory.
The Respondent State has submitted that the learned trial judge correctly invoked and utilised section 7 of the Code in finding the appellant guilty.  It was submitted that the appellant’s conduct in being in the company of persons from where the gun was fired, in the circumstances, amounts to creating the venue where section 7 of the Code could be utilised for the purposes of criminal responsibility.
In the end result we are not persuaded that the grounds of appeal have been made out.  The evidence was overwhelming, and the appellant had not taken issue with the findings, that he was present at Siraka settlement on the night of 19th October 1994, on the veranda of the house of Tony Miro, from where the deceased was shot when he was confronted by police officers, including the deceased.  There was, in our opinion, ample evidence to support the findings by the learned trial judge that either the appellant discharged the firearm or another member of his party with the knowledge and the complicity of the appellant to warrant the application of the sections 7 & 8 of the Code to return a verdict of guilty against the appellant.
We therefore dismiss the appeal and confirm the conviction and sentence.
Lawyer for the Appellant:  Public Solicitor
Lawyer for the Respondent:  Public Prosecutor