SC1138

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 8 OF 2009

JOHN KULE
Appellant

V

THE STATE
Respondent

Waigani: Cannings J, Gabi J, Yagi J
2011: 29 November, 6 December

CRIMINAL LAW – appeal against conviction – alleged inconsistency in evidence of key State witness – raising defence on appeal that was not relied on at trial – defence of extraordinary emergency under Criminal Code, Section 26 (extraordinary emergencies) – defence of accident under Criminal Code, Section 24 (intention: motive) – whether appeal against conviction on one count of murder ought to be upheld.

CRIMINAL LAW – appeal against sentence of 16 years for murder – whether manifestly excessive – whether identifiable errors made by sentencing judge

The appellant, a reserve constable, was convicted after trial of one count of murder. The appellant apprehended the deceased in a lawful police operation. The deceased escaped and the appellant shot him in the back as he was running away. The trial judge rejected the appellant's version of events that he fired two shots, the first being a warning shot, and that the deceased tripped and fell and that he (the appellant) was intending only to shoot the deceased in the leg. The trial judge concluded that the appellant killed the deceased unlawfully with an intention to do him grievous bodily harm. As to sentence the trial judge held that this was a category 2 offence according to the sentencing guidelines in the leading case of Manu Kovi v The State (2005) SC789. The presence of planning of the offence was an aggravating factor which, despite the appellant's favourable pre-sentence report, warranted a sentence within that range. Hence a sentence of 16 years imprisonment was imposed. On appeal against both conviction and sentence:

Held:

(1)	There was no material or relevant inconsistency in the evidence of the key State witness; and the trial judge was in the best position to assess the credibility of the competing evidence. No error in his Honour's assessment of the evidence was proven.

(2)	The defence of extraordinary emergency was not raised at the trial and, leave was not sought for it to be relied on at the appeal, so it should not be taken into account. In any event the defence was not available on the evidence.
 
(3)	The trial judge correctly ruled that the killing of the deceased was not an accident, thus the defence in Section 24 of the Criminal Code did not apply. The appeal against conviction was accordingly dismissed. 

(4)	As to the appeal against sentence, the trial judge correctly regarded this as a category 2 case according to the sentencing guidelines in Manu Kovi v The State (2005) SC789.

(5)	The sentence of 16 years was not manifestly excessive. However, the Judge took into account a matter he should not have taken into account and failed to take into account matters he should have taken into account. These were identifiable errors and the appeal was upheld and a lesser sentence of 13 years imposed in substitution for the original sentence.

Cases cited

The following cases are cited in the judgment:

Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
John Kaina v The State [1990] PNGLR 292
John Wanamba v The State (1998) SC551
Joseph Ampi v The State [1988-89] PNGLR 116
Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207
Manu Kovi v The State (2005) SC789
Norris v The State [1979] PNGLR 605
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Peter Wararu Waranaka v Gabriel Dusava (2008) SC942
Rimbink Pato v Umbu Pupu [1986] PNGLR 310
Thress Kumbamong v The State (2008) SC1017
Timbu v The Queen [1967-78] PNGLR 320

APPEAL

This was an appeal against conviction and sentence.

Counsel

J Kule, the appellant, in person
M Zurenuoc, for the respondent

6 December, 2011

1. BY THE COURT: The appellant appeals against the decision of his Honour Paliau AJ given on 16 April 2009 whereby he was convicted of the offence of murder and sentenced to 16 years imprisonment. The appellant appeals against both conviction and sentence.

2. The brief facts were that on 18 May 2006, between the hours of 2 am and 4 am, the appellant together with Gairo Morea, a reserve policeman, and two employees of Koitaki Farm, namely Tau Oa and Simu Jimmy, went to Iarowari High School to apprehend the deceased, who was suspected of stealing cows from the Farm. At the school, the appellant and Gairo Morea, both reserve policemen, went to look for the deceased while Tau Oa and Simu Jimmy waited in the vehicle. The appellant was armed with a pump action shotgun. They found the deceased sleeping on the veranda of the headmaster's house. They woke him up and were taking him to the waiting vehicle when he struggled free and ran off. The appellant, in an attempt to stop him, shot hit him in the back which led to his death.

NOTICE OF APPEAL

3. The grounds of appeal are:

(1)	That the convictions are unsafe and unsatisfactory in that:

(a)	The trial judge erred in placing too great a reliance on the evidence of Gairo Morea which had inconsistencies in the statements which had been tendered in Court.

(b)	The trial judge erred in convicting the accused without properly considering and directing his mind to the other possible defence available and raised under section 26 of the Criminal Code Act.

(c)	The trial judge erred in holding that the State negatived the defence of accident when the accused had sufficient credible evidence of the availability of such defence on the balance of probabilities.

(d)	The trial judge should have acquitted the appellant of the charge of murder after his findings that the death of the deceased was accidentally caused.

(e)	Any other grounds that may become apparent after the perusal of the transcripts.

(2)	The sentences were and are manifestly excessive in all the circumstances in that His Honour:

(a)	Did not take into consideration the fact that the appellant was effecting arrest when the deceased attempted to escape.

(b)	Erred in not giving sufficient weight to the mitigating factors that were advanced. [sic]

GROUND 1(A)

4. The appellant's argument is that the learned trial Judge erred by relying on the inconsistent evidence of Gairo Morea to convict him.

5. Two statements by Gairo Morea were admitted into evidence and marked as Exhibits "K" and "L" respectively. Exhibit "K" is undated but is said to be given on 18 May 2006. Exhibit "L" is dated 6 July 2006. The appellant submits that his conviction was based on Exhibit "L" which is a lie and that the witness never explained or gave any reasons for the second statement of 6 July 2006. He asks whether the second statement was "free of bribery and corruption by the Police and the family of the deceased" in view of the fact that the statement was made after the payment of compensation of K15,000.00 in cash to the family of the deceased. As the two statements are inconsistent, he argues that it was an error on the part of the learned trial Judge to convict him.

The witness gave oral evidence at the trial as well. The defence produced the statements to show that the witness had made prior inconsistent statements, which affect his credibility. The material difference between the two statements is the number of shots fired from the shot gun by the prisoner. In Exhibit "K", the witness stated that two shots were fired while Exhibit "L" showed that only one shot was fired. It must be stated from the outset that the number of shots fired from the gun – one shot or two shots – is irrelevant or immaterial. What is important is the question of who fired the fatal shot. It is clear from Exhibits "K" and "L" that the shot that killed the deceased was fired by the appellant. Even if the number of shots were relevant, the witness explained the inconsistency during re-examination. He stated that the first statement was taken down by policeman John Waima after the appellant had told everyone at the Central Provincial Police Headquarters about the incident and Mr Waima was aware of the story and that he did not see the statement. With respect to the second statement, he said he gave the statement.

6. Furthermore, the learned trial Judge did not believe the appellant's evidence that two shots were fired and that the deceased tripped. He believed Gairo Morea's version of events. The trial Judge was in a better position to assess the credibility and demeanour of witnesses and this Court must be slow in disturbing the trial Judge's assessment. In Rimbink Pato v Umbu Pupu [1986] PNGLR 310 this Court adopted and applied three principles set out by Kirby P in Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-211. The second of those principles is most relevant for present purposes, namely that appellate courts will normally show deference to the assessment of credibility made by the trial judge, traditionally justified by the advantage which the trial judge has by reason of hearing and seeing the witnesses.

7. Again 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.

8. Recently, on the question of challenges to findings of fact based on assessment of demeanour and credibility of witnesses in Peter Wawaru Waranaka v Gabriel Dusava (2008) SC 942, Injia CJ said:

It is difficult for a review Court to overturn findings of fact based on assessment of credibility of witnesses because the review court is not in a better position than the trial judge to assess the performance and demeanour of witnesses and asses the probative value of the evidence they give. The review Court will often defer to the trial judge's judgment on these sort of matters except where there is gross error manifest on the findings of fact based on the evidence before the Court.

9. We have had the benefit of reading the evidence of the appellant and Gairo Morea and find no apparent error. Accordingly, we dismiss this ground of appeal.

GROUND 1(B)

10. The appellant argues that the deceased broke free and was escaping when he was shot and therefore the learned trial Judge should have given him the benefit of Section 26 of the Criminal Code (extraordinary emergencies).

11. Counsel for the State submits that in order to make out a defence under Section 26, it must be shown that there was actual force or threat of force towards the offender such that he/she was deprived of the power of self control and refers the Court to Joseph Ampi v The State [1988-89] PNGLR 116 and Thress Kumbamong v The State (2008) SC1017.

12. In this case, the deceased, after being apprehended broke free and was running away from the appellant and Gairo Morea, when he was shot in the back. He was unarmed. There was no threat to the appellant. We agree with counsel for the State that the defence of extraordinary emergency is not available to the appellant.

13. Furthermore, the defence was not raised before the learned trial Judge, and leave has not been sought to argue this fresh point on appeal, so it should not be considered (Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We dismiss this ground of appeal.

GROUNDS 1(C) & (D)

14. Grounds 1(c) & (d) are dealt with together because they relate to the defence of accident under Section 24 of the Criminal Code. The appellant argues that he should have been given the benefit of the defence of accident.

15. Counsel for the State refers the Court to Timbu v The Queen [1967-78] PNGLR 320, John Wanamba v The State (1998) SC551 and Thress Kumbamong v The State (supra) and submits that the learned trial Judge applied the correct principles of law and correctly found that the defence of accident did not exist.

16. The appellant's contention was that he shot at the deceased's legs but the deceased tripped and fell and was shot in the back. Gairo Morea said the deceased did not trip and fall.

17. The learned trial Judge believed Gairo Morea, not the appellant. He made the following findings:

The accused ... had the intention to shoot at the deceased to prevent him from escaping. It was a willed act. He consciously and willingly pulled the trigger. He intended to cause grievous bodily harm by pulling the trigger to immobilise the deceased. He had a duty of care towards the deceased, which duty was omitted. He acted intentionally, recklessly and negligently.

18. We agree that the learned trial Judge applied the correct principles of law and came to the correct conclusion that the defence of accident did not exist and was not available to the appellant. We dismiss these grounds of appeal as well.

SENTENCE

19. Counsel for the State argues that the learned trial Judge took into account both the aggravating and the mitigating features, that a gun was used, that the raid to apprehend the deceased was pre-planned, that there was intention to cause grievous bodily harm, that although the pre-sentence report was favourable to the prisoner the aggravating factors significantly reduced the mitigating factors and that the guidelines in Manu Kovi v The State (2005) SC789 were properly considered. Accordingly, the sentence is appropriate in the circumstances and ought not to be disturbed.

20. The appellant, on the other hand, submits that the sentence is excessive for two reasons. First, the learned trial Judge did not give sufficient weight to the circumstances of death where the deceased was escaping from lawful arrest when shot. Secondly, no weight was given to the mitigating factors. He therefore asks for a reduced sentence.

21. The appellate court will not interfere with the punishment unless the appellant shows some error of law or facts or, that the punishment is manifestly excessive in the circumstances. Kearney J stated the principle in Norris v The State [1979] PNGLR 605 at pp. 612- 613:

So the question in practice on a sentence appeal is usually this – has the appellant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.

22. We agree with the learned trial Judge that this is a category 2 offence according to the classification in Kovi, which suggests a sentence range of 16 to 20 years. However, we are of the view that the learned trial Judge took into account a matter he should not have taken into account and failed to take into account matters he should have taken into account in determining punishment. His Honour considered the use of a gun, pre-planning and intention to do grievous bodily harm as special aggravating factors. We are of the opinion that pre-planning becomes a special aggravating factor when there is planning to cause harm or kill someone. There is no evidence before the Court to either harm or kill someone. There was obviously a plan to apprehend the deceased in the night while he was asleep. The deceased was alleged to have committed a number of offences and was required to answer the allegations. To this end, it was not against the law to plan his capture. The plan went horribly wrong when the deceased broke free and ran away from the appellant and Gairo Morea. It was wrong, with respect, to consider the plan to capture or apprehend the deceased as a special aggravating factor.

23. The learned trial Judge failed to take into account a number of factors which mitigated the seriousness of the offence. First, the appellant was a police officer engaged in official duty. He was duty bound to seek and apprehend the deceased for questioning in relation to the allegations that he was involved in the stealing and killing of cows. Secondly, the incident was spontaneous in that the deceased broke free and started to run away from the appellant. In an effort to immobilise him the appellant shot at him and killed him. Finally, there is evidence before the Court of stealing and killing of cows. The appellant being a police officer was duty bound to seek and apprehend the deceased, who to a large extent started the chain of causation that led to his death. His death was uncalled for and most regrettable.

CONCLUSION

24. We uphold the appeal in part. The appeal against conviction is dismissed. The appeal against sentence is upheld and we substitute a sentence of 13 years for the 16 years imprisonment imposed by the National Court.

ORDER

(1)	the appeal against conviction is dismissed;

(2)	the appeal against sentence is allowed;

(3)	the sentence of 16 years imprisonment passed by the National Court is quashed and substituted with a sentence of 13 years imprisonment;

(4)	the warrant of commitment issued by the National Court is revoked and a fresh warrant of commitment reflecting the new sentence shall be issued in substitution for it.
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Lawyer for the appellant : Nil
Public Prosecutor: Lawyer for the respondent