SC1023

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 22 0F 2002

GLEN OTTO KAPAHI
Appellant

V

THE STATE
Respondent

Waigani: Injia CJ, Cannings & Kariko JJ
2009: 3 September,
2010: 30 April

CRIMINAL LAW – appeal against conviction – inconsistencies in evidence of State witnesses – whether significant – whether adequately addressed by trial judge – whether defence case adequately addressed – whether guilty verdict unsafe or unsatisfactory.

The appellant appealed against his conviction for armed robbery on the ground that there were material inconsistencies in the evidence of the State witnesses, which made the verdict unsafe and unsatisfactory.

Held:

(1)	The mere existence of inconsistencies in the evidence of State witnesses does not necessarily mean that the State's case should be rejected. However, if there are inconsistencies the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

(2)	Here, the State witnesses gave three different versions of the circumstances in which the appellant was apprehended. The inconsistencies in the evidence were significant and the trial judge did not adequately address them. Further, there was a failure to properly address the defence case which under all the circumstances rendered the verdict unsafe and unsatisfactory.

(3)	The appeal was accordingly allowed and, a miscarriage of justice having occurred that cannot be more adequately remedied by an order for a new trial, the conviction was quashed and a verdict of not guilty entered.

Cases cited

The following cases are cited in the judgment:

Brian John Lewis v The State [1980] PNGLR 219
Devlyn David v The State (2006) SC881
John Beng v The State [1977] PNGLR 115
Karo Gamoga v The State [1981] PNGLR 443
Paulus Pawa v The State [1981] PNGLR 498
Rimbink Pato v Umbu Pupu [1986] PNGLR 310

APPEAL

This was an appeal against conviction for armed robbery.

Counsel

G O Kapahi, the appellant, in person
R Auka, for the respondent

30 April, 2010 

1. BY THE COURT: Glen Otto Kapahi appeals against his conviction for armed robbery. He and two other accused were convicted by the National Court at Waigani and sentenced to six years imprisonment each over an armed robbery that occurred at the Stop N Shop store at Rainbow, Gerehu on 15 November 2001.

2. The sole ground of appeal argued by the appellant is that the verdict of guilty was unsafe and unsatisfactory as the trial judge incorrectly found it proven that he was apprehended in the motor vehicle that had been used in the robbery a matter of minutes after the robbery took place. He argues that the State witnesses provided three different versions of the circumstances in which he was apprehended and these inconsistencies were not properly addressed by the trial judge who also failed to properly address the appellant's sworn evidence that he was apprehended and shot by the police at a completely different place. The appellant argues that there was no other evidence linking him to the robbery and he should have been found not guilty.

THE TRIAL

3. The appellant has correctly pointed out that there was no evidence before the National Court linking him to the robbery other than the evidence of three police witnesses as to the circumstances in which he was apprehended shortly after the robbery.

4. The trial judge applied the principles on circumstantial evidence from the leading case of Paulus Pawa v The State [1981] PNGLR 498 and concluded that the proven facts were inconsistent with any reasonable hypothesis other than the guilt of the appellant. The appellant does not take issue with the way in which the trial judge stated or applied those principles; and rightly so. We consider that the trial judge stated the correct principles and applied them to the facts that he found had been proven. The trial judge reached the inevitable conclusion based on those proven facts that they were inconsistent with any reasonable hypothesis other than guilt.

5. The facts that the trial judge found proven were:

•	the appellant was the offside front passenger in a black Mitsubishi car driven at high speed from the scene of the robbery in the direction of Gerehu;

•	the car was followed by two police units that happened to be in the vicinity, in hot pursuit;

•	the appellant had a pistol in his possession and at one stage fired shots at a police officer, Const James Yoko, who was on duty at the residence of the then Speaker of the National Parliament, Hon Bernard Narokobi MP;

•	Const Yoko returned fire, forcing the car (containing the appellant and five others) to run off the road;

•	during the shootout the appellant was shot in his left thigh;

•	the appellant had difficulty getting out of the car and was apprehended in the vehicle and taken to hospital.

ISSUES

6. The issues that require determination in this appeal are:

1	Were there inconsistencies in the evidence of the State witnesses?

2	Were the inconsistencies adequately addressed by the trial judge?

3	Did the trial judge adequately assess the defence case?

4	Was the verdict unsafe or unsatisfactory?

5	What order should the Supreme Court make?

1	WERE THERE INCONSISTENCIES IN THE EVIDENCE OF THE STATE WITNESSES?

7. At the trial the State relied on the evidence of five witnesses. One of them was a member of the staff at the store who was threatened with a firearm and forced to hand over a money bag containing cash. This witness could not identify any of the suspects. The other four witnesses were police officers who gave evidence about how the appellant and his two co-accused were apprehended. Three of the police officers testified about how the appellant was apprehended. It is their evidence, the appellant argues, which provides three different versions of how he was apprehended.

8. Const James Yoko said he was on duty at the Speaker's residence at about 8.30 am. He heard shots being fired from a distance so he got his police-issued firearm. He heard and then saw a vehicle, a black Mitsubishi, speeding in his direction. There were six people in the car, two in the front and four in the back. The person sitting in the front passenger seat fired a shot at him. He returned fire and shot at the vehicle's rear tyres as it was driven past, causing the driver to lose control and the vehicle ran off the road. He saw some occupants run away. He walked towards the abandoned vehicle and saw somebody still inside it. That person pointed a pistol at him. A police vehicle then arrived on the scene, so he was able to disarm him. That person was the appellant. He (Const Yoko) said he did not know what made it difficult for the appellant to get out of the vehicle. He did not shoot the appellant and the appellant was not injured.

9. Snr Sgt Moses Ipsagi said that he was in a police vehicle in the vicinity of the robbery with other police officers when they heard over the police radio what had happened. They gave chase after two suspects running on foot and eventually apprehended them in front of a house occupied by the then lawyer, Powes Parkop. Snr Sgt Ipsagi said that he was not armed at the time, that some shots were fired by other police officers. In examination-in-chief he identified the co-accused Alex Tonak and Gonek Potomak as being the two suspects apprehended outside Mr Parkop's residence. However, in cross-examination he said that it was Alex and "the accused Otto" (the appellant) who were apprehended there.

10. Const Steven Numbos said that he was the driver of a police vehicle that chased the black Mitsubishi. Other police officers were with him in the police vehicle and there was an exchange of gunfire. The Mitsubishi went around a corner in front of him and he lost sight of it but then soon afterwards came upon it. All the occupants except the appellant were already on foot. The appellant was struggling to get out of the vehicle. The appellant was seriously injured. Const Numbos said he saw blood coming down his legs but did not know how he was injured or whether he was shot by any of the officers in his vehicle. He was bleeding heavily and rushed to hospital. He felt sorry for the appellant and helped him. "Me alone I apprehended Glen and put him in the car", Const Numbos testified.

11. We uphold the appellant's submission that the State witnesses gave three versions of the circumstances in which he was apprehended, viz:

1	in the Mitsubishi, by Const Yoko, uninjured;

2	at Mr Parkop's residence, by Snr Sgt Ipsagi, uninjured;

3	in the Mitsubishi, by Const Numbos, seriously injured and bleeding heavily.

12. We agree with the appellant that there are inconsistencies in the evidence of the three witnesses, in three respects:

•	on the one hand, Const Yoko and Const Numbos said that the appellant was apprehended in or as he was trying to get out of the Mitsubishi, on the other hand Snr Sgt Ipsagi said that he was apprehended in front of Mr Parkop's residence, with the co-accused Alex, and he was not injured;

•	on the one hand, Const Yoko said that he apprehended the appellant, on the other hand Const Numbos said that he alone apprehended the appellant;

•	on the one hand, Const Yoko said that the appellant was not injured, on the other hand Const Numbos said that the appellant was bleeding heavily and seriously injured.

2	WERE THE INCONSISTENCIES ADEQUATELY ADDRESSED BY THE TRIAL JUDGE?

13. The mere existence of inconsistencies does not mean that the State's case should be rejected. However, if there are inconsistencies the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be (Devlyn David v The State (2006) SC881).

Inconsistency as to the place of apprehension

14. The trial judge did not mention the inconsistency created by Snr Sgt Ipsagi's evidence that the appellant was one of the two suspects apprehended in front of Mr Parkop's residence. Perhaps his Honour felt that this was a simple, obvious error as Snr Sgt Ipsagi had said in examination-in-chief that the two suspects were the appellant's co-accused; it was only in cross-examination that he said that the appellant was one of them. It was not a point highlighted by the defence counsel, Mr Sakumai, in his closing address, but it is an appeal point raised by the appellant in his submission to the Supreme Court.

15. We consider that the learned trial judge should have identified and assessed the significance of this anomaly in the evidence and that the failure to do so was an error of law.

Inconsistency as to who apprehended the appellant

16. As to the inconsistency between the evidence of Const Yoko and Const Numbos, his Honour did not mention that Const Yoko said that he apprehended the appellant; whereas Const Numbos said he alone apprehended him.

Inconsistency as to whether the appellant was injured

17. As to the inconsistency in the evidence about whether the appellant was injured, his Honour identified it and made an assessment of it. It was important to do this as there was undisputed evidence that the appellant had at some stage during the process of apprehension been shot and badly wounded on his left thigh. The appellant showed his wound to the trial judge who observed:

There is a big hole, a scar, on the left thigh going down towards the left kneecap front. There is a point of entry and as indicated as the witness has shown, there is no point of exit.

18. There was also undisputed evidence at the trial that when Const Numbos was driving the police vehicle, chasing the Mitsubishi, police officers inside the vehicle were firing shots at the back of the Mitsubishi. The defence counsel submitted that it was therefore highly improbable that the appellant was the person apprehended in the vehicle: he was shot from the front, not from the back.

19. The trial judge addressed these matters by focusing on Const Yoko's evidence that he had shot at the Mitsubishi as it drove past, causing the driver to lose control, and that the person in the front passenger seat had fired at him. His Honour reasoned as follows:

That person would obviously have turned his body towards Const Yoko and fired thereby exposing the front of his body to the constable. So when Const Yoko said he repeatedly fired at the passing vehicle, I have no doubt in my mind that one of the shots hit the offsider as he was in that position. That in my view sufficiently explains how Glen Otto was shot in his front left thigh. I do not see any inconsistency in the evidence of Const Yoko and Const Numbos. It is possible that the injuries may not have been obvious when Const Yoko disarmed the accused. On the other hand, he may have already been wounded but Const Yoko did not see. The evidence of Const Yoko is an account of what he saw. Whether he saw the injury of the accused inside or outside of the vehicle is not inconsistent with the other State witness's evidence. There is no evidence of a further shooting where the black Mitsubishi Lancer was after the accused was apprehended. The last shot taken of the vehicle was by Const Yoko. …

On the whole I accept Const Yoko's evidence that when he apprehended the accused, he did not see any injury on him. That is not to say that the accused was not injured. He would have been injured but given the prevailing circumstances that Const Yoko had to attend to his principal duty of guarding the Speaker, Const Yoko could not be around to observe any further activities on the body of the accused.

20. At this point we remind ourselves that whenever the Supreme Court is asked to disturb the findings of fact of a trial judge, it ought not purport to stand in the shoes of the trial judge and make fresh findings of fact. It must be alert to the superior position of the trial judge, who has heard and seen the evidence at first hand (Brian John Lewis v The State [1980] PNGLR 219). On the other hand, the Supreme Court is entitled to draw its own inferences from the evidence that has been presented.

21. Most of this appeal has been concerned with reviewing inferences drawn from specific facts, and an appeal court is generally in as good a position as the trial judge to evaluate the evidence (Karo Gamoga v The State [1981] PNGLR 443, Rimbink Pato v Umbu Pupu [1986] PNGLR 310). In that regard we cannot agree with the learned trial judge that it is a reasonable inference to draw from the evidence that the appellant was shot through the front of his left thigh while he was in the moving vehicle that sped past Const Yoko. We consider that the point of entry of the bullet makes it most unlikely that the wound would have been incurred while the appellant was in the vehicle. Const Yoko said he shot out the Mitsubishi's rear tyres, forcing the driver to lose control. He gave no evidence of shooting the appellant. He said that the appellant was not injured.

22. We also have difficulty with the learned trial judge's reconciliation of Const Yoko's evidence (that he did not shoot the appellant and the appellant was not injured) with Const Numbos's evidence (that the appellant was seriously injured and bleeding heavily). Putting aside for a moment the inconsistency created by both witnesses not mentioning the presence of each other when apprehending the appellant, we do not, with respect, think it is reasonable to accept that two police officers arriving on the scene of the abandoned vehicle at about the same time would make such fundamentally different observations of a suspect: one says the appellant was uninjured, the other says he was seriously injured, bleeding heavily and had to be rushed to hospital. We consider that this was a very significant and irreconcilable inconsistency.

Conclusion as to inconsistencies

23. We consider that each of the three inconsistencies in the evidence of the State witnesses highlighted by the appellant was significant and that the learned trial judge failed to adequately address them.

3	DID THE TRIAL JUDGE ADEQUATELY ASSESS THE DEFENCE CASE?

24. The appellant gave sworn evidence that he had no involvement in the robbery. He said he was a firefighter employed at Gerehu Fire Station. On the morning of the robbery he was off-duty but was walking from his home in Gerehu to the fire station to collect some personal papers as he wanted to go into town later in the day to apply for a loan. He observed that the police were chasing some criminals so he walked to the side of the road. The next thing, the police saw him, approached him, held him, put the barrel of a gun on his leg and fired a shot. He blacked out and didn't regain consciousness until he was in the emergency ward at Port Moresby General Hospital. He was not discharged from hospital until six weeks later.

25. His Honour rejected this evidence but gave no particular reasons for doing so. His Honour did not comment on the appellant's demeanour in the witness box or the degree of logic or common sense evident in his version of events.

26. His Honour rested his rejection of the appellant's evidence on his finding that the evidence of the police witnesses was consistent and corroborative in material particulars. We consider, with respect, that his Honour did not adequately assess the defence case.

4	WAS THE VERDICT UNSAFE OR UNSATISFACTORY?

27. In light of the three significant inconsistencies in the evidence of the State witnesses and the failure to adequately address the defence case, we consider that the guilty verdict was unsafe and unsatisfactory.

5	WHAT ORDER SHOULD THE SUPREME COURT MAKE?

28. In deciding what order to make, we must consider Sections 23(1), (2) and (3) and Section 28(1) of the Supreme Court Act.

29. Sections 23(1), (2) and (3) (determination of appeals in ordinary cases) 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.

(3)	If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.

30. Section 28(1) (powers of Supreme Court in special cases) states:

If on an appeal against conviction, the Supreme Court thinks that—

(a)	a miscarriage of justice has occurred; and

(b)	having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,

the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.

31. We consider that the appeal should be allowed as under all the circumstances of the case the verdict is unsafe and unsatisfactory and there is a reasonable doubt, not merely a lurking doubt, about the guilty verdict (John Beng v The State [1977] PNGLR 115). We also consider that a miscarriage of justice has occurred, which cannot be more adequately remedied by an order for a new trial. We understand that the appellant has served the sentence imposed by the National Court, and that is another reason that in the interests of justice it is not appropriate to order a new trial. We will quash the conviction and direct that a verdict of not guilty be entered.

ORDER

1	the appeal is allowed;

2	the conviction for armed robbery is quashed;

3	a verdict of not guilty is entered;

4	the sentence is quashed and the warrant of commitment to custody issued by the National Court is revoked.

Judgment accordingly.
_____________________

Lawyer for the appellant : The Appellant in Person
Public Prosecutor: Lawyer for the Respondent