SC1398

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCRA 4 0F 2009

BETWEEN:

WELSH SAMOR, JOACHIM BANANAI & ANGILAMBO SIMBAIOR
Appellants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Lae: Hartshorn, Kariko and Kangwia, JJ
2014: 28th & 30th October

CRIMINAL LAW – Appeal against conviction – Murder – Whether charge properly proved on the evidence – No identifiable error – Verdict not unsafe or unsatisfactory – Appeal dismissed – Section 23, Supreme Court Act

Cases cited:

John Beng v The State [1977] PNGLR 115 
Rimbink Pato v Umbu Pupu [1986] PNGLR 310

Counsel:

Mr P Kunai, for the appellant
Mr R Auka, for the respondent

30th October, 2014

1.	BY THE COURT: Welsh Samor, Joachim Bananai and Angilambo Simbaior have appealed against their convictions by the National Court at Madang on 19th March 2009 for the murder of one Carl Gamanambo (the Deceased) at Kosakosa village, Madang on 8th January 2006.

The trial

2.	The appellants pleaded not guilty in the National Court to an indictment for the wilful murder of the Deceased. They were charged together with Patrick Samor, Dour Male, John Pake, Joseph Pake, and Solomon Samor. Patrick changed his plea to guilty during the trial, Dour was not tried as he was at large, John and Joseph Pake were acquitted upon a no case submission while Solomon escaped from custody during the trial. 

3.	The State's case was that following the deaths of two villagers from Kosakosa village, Madang and during the "haus krai" on the afternoon of 8th January 2006 the mourners became highly emotional and angry and a call was raised to attack sorcerers for causing the deaths. In those circumstances, the appellants as part of a group proceeded to the residence of the Deceased who was a reputed sorcerer and attacked him. The Deceased died later from knife wounds inflicted during the assault. 

4.	The prosecution evidence comprised oral testimony of witnesses Wilfed Alua, Joe Yami, Caspar Ken and Jacklyn Bariy and certain documentary evidence. 

5.	The trial judge accepted the evidence of Wilfred, Joe and Caspar as credible and reliable and found they were truthful. Their evidence in brief was that:

(1)	Wilfred witnessed the assault on the Deceased and testified that the appellants were involved;

(2)	Joe observed Dour Male and Patrick Samor carrying bush knives with other people shouting, and later seeing the Deceased being carried away; and 

(3)	Casper saw Dour and Patrick cut the Deceased with their bush knives. He also saw the appellants there when the Deceased was assaulted.

6.	Jacklyn Bariya was declared a hostile witness after she departed significantly from her Police Statement. The Statement was tendered into evidence and the trial judge concluded that the deviation in her testimony was influenced by her being a beneficiary to a substantial compensation payment to the relatives of the Deceased (including herself). In her Statement she said that the Deceased was chased by a group of men and assaulted. She also stated that she saw Joachim Bananai hit the Deceased on the head with a piece of wood, Dour Male cut the deceased on the head, and Solomon and Patrick Samor holding bush knives. The trial judge accepted the Statement as providing an accurate account of the witness' evidence. 

7.	The documents (which were tendered by consent) consisted of the Records of Interviews and the Certificate of Death of the Deceased. The Certificate confirmed that the Deceased died from multiple knife wounds. In their respective Records of Interview, the appellants Welsh Samor and Joachim Bananai made incriminating statements placing them at the scene of the crime and being involved in the assault on the Deceased. The appellant Angilambo Simbaior told the police he came onto the scene late and fought with Wilfred and then left. This statement contradicted the "alibi" put up by the Defence witnesses.

8.	The Defence case was that the appellants had no involvement whatsoever with the killing of the deceased, and that at the relevant time, the only fight was the fight Wilfred had with Welsh and Angilambo. That fight only lasted for a short while and then they all returned home. They all denied the appellants ever assaulted the Deceased that afternoon of 8th January 2010. 

9.	The trial judge found the State's case duly proved and rejected the alibi defence but he was not satisfied that the element of intention to kill had been properly established and instead convicted the appellants of the lesser charge of murder. His Honour held that the appellants had acted in concert and the common purpose to cause grievous bodily harm to the Deceased. 

Grounds of appeal

10.	While the appellants' Notice of Appeal contains five grounds of appeal challenging their convictions, two of the grounds were abandoned at the commencement of the hearing while another was discontinued during submissions. The remaining grounds are: 

"(a) The learned trial judge erred in law in convicting the appellants of the offence of murder when there was insufficient evidence to support the finding that the appellants were involved in the killing of the deceased; and

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 (d) The trial judge erred in law in refusing to accept the evidence of the appellants that they were not involved in the killing of the deceased."

Issue

11.	These grounds together suggest that the trial judge erred in not finding that the State had not proved beyond a reasonable doubt that the appellants were not involved in the assault of the Deceased and therefore were criminally liable for his death.

The law 

12.	In relation to an appeal against conviction, s. 23(1) (a) Supreme Court Act states:

"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;…."

13.	In the case of John Beng v The State [1977] PNGLR 115, the Supreme Court after considering various authorities held that (in referring to the equivalent provision to section 23(1) in the former Supreme Court Act 1975) should be interpreted to mean that:

"the Supreme 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."

Submissions

14.	Mr Kunai for the appellants commenced his arguments by referring to and adopting the final submissions at the trial regarding the evidence. He was reminded that this is an appeal and not a re-trial and that submissions should focus on the errors alleged to have been made by the trial judge in reaching the verdicts. His submission then narrowed down the proposition that the evidence of State witness Caspar Ken confirmed that Dour and Patrick attacked the Deceased with knives and the appellants were not involved. He submitted this was consistent with the Defence case which the trial judge should have accepted as true and thereby found the appellants not guilty.

15.	We are unable to agree with that submission. As noted earlier, the evidence relied upon by the trial judge to convict consisted much more than the evidence of Caspar Ken. The evidence also included the testimonies of Wilfred Alua and Joe Yami, the Police Statement of Jacklyn Bariya, the Records of Interview and the Certificate of Death. 

16.	In relation to the contradictions between the statements by the appellants in their Records of Interview and their sworn evidence in Court, Mr Kunai urged the Court to accept the sworn evidence by the respective appellants explaining that the Police fabricated the incriminating answers in Welsh Samor's interview and that Joachim Bananai implicated himself in his answers due to nervousness. We reject this submission. The Records of Interviews were tendered by consent and were not challenged in any manner or form. 

17.	We agree with Mr Auka for the State that the trial judge was best positioned to scrutinize the demeanour of the witnesses and analyse their evidence, and this Court should respect that: Rimbink Pato v Umbu Pupu [1986] PNGLR 310. His Honour discussed all these aspects in relation to each witness and reached the conclusions that the State had properly proved murder and that the appellants and their witnesses lied to the Court in denying the appellants' involvement in the assault on the Deceased. 

Conclusion

18.	It is our opinion that the appellants have not demonstrated any errors by the trial judge in the approach taken by his Honour in dealing with the evidence in reaching the verdicts, and they have not established that the verdicts are unsafe or unsatisfactory. We therefore dismiss the appeals.

________________________________________________________
Kunai & Co: Lawyer for the Appellants
The Public Prosecutor: Lawyer for the Respondent