SC1644
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 14 OF 2016

DANIEL MAIYAU
 Appellant

V

THE STATE
Respondent

Waigani: Cannings J, Hartshorn J, Kangwia J
2017: 12, 21 December

CRIMINAL LAW – appeal against conviction for attempted murder, Criminal Code, Section 304(a) – whether reasonable doubt about safeness or satisfactoriness of verdict – whether trial judge failed to give effect to presumption of innocence – whether trial judge failed to give effect to requirement that prosecution prove guilt beyond reasonable doubt – whether trial judge erred by regarding body language of accused as admission of guilt – whether trial judge failed to have regard to other rational explanations for accused’s body language – whether trial judge failed to make independent assessment of accused’s witnesses – whether proper assessment made of medical evidence. 

This was an appeal against conviction for attempted murder. The trial judge accepted the State’s version of events, which was that after an argument between the appellant and his girlfriend, the complainant, in a nightclub carpark, the appellant deliberately drove his motor vehicle into and over the complainant, with the intention of killing her. The trial judge relied on the evidence of the complainant and three other State witnesses who were in the car park and saw the argument between the appellant and the complainant. The trial judge rejected the evidence of the appellant, who denied driving his vehicle into or over the complainant, his Honour taking the view, based on body language including facial expressions, that the appellant was lying and that other defence evidence, including medical evidence, suggesting other possible causes of the complainant’s injuries, was not persuasive as it was not put to the State’s witnesses particularly the complainant, contrary to the rule in Browne v Dunn (1893) 6 R 67 (HL). The appellant raised six grounds of appeal: (a) error of law by failing to give effect to the presumption of innocence; (b) error of law by failing to insist that the prosecution prove its case beyond reasonable doubt; (c) error of law by treating the accused’s body language and facial expressions as an admission of guilt; (d) error of fact and law by failing to have regard to other rational explanations for accused’s body language; (e) error of fact and law by failing to make an independent assessment of the accused’s witnesses; and (f) error of law by failing to make a proper assessment of the medical evidence. In addition the appellant argued that the complainant’s evidence was impossible to believe and that there were material inconsistencies in the evidence of State witnesses.

Held:

(1)	To succeed on an appeal against conviction, an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial, and the Supreme Court must consider that a miscarriage of justice has occurred. 

(2)	The six grounds of appeal were arguments that the conviction was unsafe and unsatisfactory and entailed wrong decisions on questions of law. All were dismissed as the trial judge: (a) gave effect to the presumption of innocence; (b) did not depart from the evidentiary requirement that the prosecution prove its case beyond reasonable doubt; (c) did not treat the accused’s body language and facial expressions as an admission of guilt; (d) did not err in law by failing to have regard to other rational explanations for accused’s body language; (e) made a proper assessment of the evidence of the accused’s witnesses; and (f) made a proper assessment of the medical evidence. 

(3)	The argument that the trial judge erred by accepting evidence of the complainant that was “impossible” to believe was based on an opinion unsupported by any evidence; and there was no material inconsistency in the evidence of the State witnesses. 

(4)	There was no miscarriage of justice, so the appeal was dismissed.

Cases cited

The following cases are cited in the judgment:

Papua New Guinea Cases

Andrew Palili v The State (2006) SC848
Brian John Lewis v The State [1980] PNGLR 219
John Beng v The State [1977] PNGLR 115 
Kelly Kai Kapuni v The State (2016) SC1506
Kutau v The State (2007) SC927)
R v Ben Forepe [1965-1966] 329
Rimbink Pato v Umbu Pupu [1986] PNGLR 310
The State v Andrew Sinogup (2015) N5880
The State v Daniel Kapen (2012) N4895
The State v Elias Mautu (2007) N5028
The State v Henry Levo (2015) N5902
The State v James Yali (2005) N2988
The State v Michael Nuli (2011) N4198
Welsh Samor v The State (2014) SC1398

Overseas Cases

Browne v Dunn (1893) 6 R 67 (HL)

APPEAL

This was an appeal against conviction for attempted murder.

Counsel

G J Sheppard & P Tabuchi, for the Appellant
T McPhee & C Langtry, for the Respondent

21st December, 2017 

1.      BY THE COURT: Daniel Maiyau was convicted by the National Court of one count of attempted murder under Section 304(a) of the Criminal Code and sentenced to seven years imprisonment. He appeals against his conviction. 

2.     The appellant was convicted of the attempted murder of the complainant, Kessie Dulcie Darby at Port Moresby on 16 March 2013. The trial judge found that the State had proven its case, which was that between 4.00 and 5.00 am the appellant and the complainant, then his girlfriend, had an argument in the carpark of the Illusions nightclub, Port Moresby. In the course of the argument, the appellant assaulted the complainant. The complainant walked towards a gate, following the driveway of the carpark. The appellant then got into his Toyota Landcruiser motor vehicle and drove straight at the complainant, hitting her on the back, which caused her to fall to the ground, then he drove over her, causing serious injuries to the head, legs and backbone. 

3.     The trial judge relied on the evidence of the complainant and three security guards who were on duty in the area of the carpark. The key parts of the trial Judge’s reasoning, resulting in the guilty verdict, are set out in the following passage of his Honour’s oral judgment (obtained from the transcript of proceedings, there being no written judgment): 

The prosecution’s evidence was anchored by Kessie Dulcie Darby, the complainant, who, while she was under the influence of liquor, was able to recollect what happened to her at that time. She gave evidence with pictures of injuries she sustained. She also explained all the injuries she sustained and how she sustained them. She gave evidence that when she was hit, she avoided possible death by rolling onto the centre of the driveway to avoid the two sets of tyres going over her. Before she was hit, she said she did not think the accused would run her down as he did. She expected him to stop because she was walking on the driveway and within his view.

The complainant’s evidence is supported by the evidence of security guards of Club Illusion who are unrelated to the accused and the complainant.

The evidence at the end of the State’s case was adequate for the court to lawfully convict the accused for the charge of attempted murder. The accused had to adduce evidence to at least create a doubt in relation to any element of the charge.
 
The accused’s evidence is consistent with the complainant’s evidence. Relevantly, he does not deny that there was an argument between himself and the complainant at the car park. He does not deny that he assaulted the complainant at the car park. He also confirmed that the complainant, after the assault, walked away along the driveway and that was when his evidence varies. He said that when he drove out, he did not bump or hit the complainant. He merely drove out and then took the freeway to 5 Mile when he stopped at the roadside market and that was when he was apprehended by the club security personnel.

The question for the court is whether the court should believe the complainant or believe the accused. When the accused gave evidence, I noted something I rarely see in court. He appeared to me to be shy or afraid of the audience sitting in court. I could tell from his body language and his facial expressions. He was not comfortable to the extent that during his testimony he had his arms on the bar table and his head was leaning on his right hand. He maintained this position throughout his testimony. I was of the clear impression that he was telling lies. His failure to impress me as a credible witness casts a shadow of doubt over his witnesses, especially, the other security guard who gave evidence about seeing some youths dragging a New Guinea Island female into a dark spot where she was sexually abused.	

The defence witness, as well as the two doctors’, evidence were, in any case, adduced unfairly. The defence used these witnesses to support their contention that the complainant was sexually assaulted by youths when she walked out from the driveway. But this contention was never put to the complainant and the prosecution’s witnesses when they gave evidence. How can I even consider this contention if the complainant has not been given the opportunity to hear it and either deny it or admit it? It was blatant disregard of the rule of fairness in Browne v Dunn, especially, when I have in the past, told counsels to observe the rule in Browne v Dunn. This is not a mere breach. It is unfair to allege or claim anything against someone without according that person the right to be heard. When considered with the poor performance by the accused, it is open to the court to reject the defence evidence and the court does so. 

Ultimately, the court finds that the accused did bump the complainant and drove over her. I find that he did so deliberately after the argument they had at the car park.

As to the question of intention, it is open to the court on the evidence to find that he intended to kill the complainant when he drove over her. The injuries are substantial. 	In court the complainant had to be assisted to attend the hearing. I find also that he had the required intention to kill when he did what he did. In all the circumstances, I find the accused guilty as charged. 

GROUNDS OF APPEAL 

4.    The notice of appeal raised six grounds of appeal:

1.	The learned trial Judge erred as a matter of law in that he failed to give any or any proper effect to the presumption of innocence as required by s 37(4) of the Constitution, and failed to give proper effect to the requirement that the prosecution prove the guilt of the appellant beyond reasonable doubt.

2.	The learned trial Judge erred in law when he made the finding that “the question for the court is whether the court should believe the complainant or believe the accused” [in] that he failed to give any or any proper effect to the presumption of innocence as required by s 37(4) of the Constitution, and failed to give proper effect to the requirement that the prosecution prove the guilt of the appellant beyond reasonable doubt.

3.	The learned trial Judge erred as a matter of law in that he treated the appellant’s body language and facial expressions as an admission of guilt, and enabled a conviction to be returned notwithstanding that the prosecution did not make out a prima facie case on the counts or either of them.

4.	The learned trial Judge erred in law or mixed fact and law in finding that the appellant’s body language and facial expressions, particularly his apparent shyness and fear of the audience sitting in court, supported a finding that he was lying without having regard to other rational explanations for what his Honour observed such as the appellant being unaccustomed to speaking in a public forum or the appellant feeling intimidated in the presence of the alleged victim and/or her relatives.

5.	The learned trial Judge erred in law or mixed fact and law so far as he found that the appellant’s failure to impress him as a credible witness cast doubt over his witnesses, especially a security guard, whereas the evidence of those other witnesses should have been assessed independently with an open mind and not with an external “shadow” over their evidence.

6.	The learned trial Judge erred in law in convicting the appellant in that he failed to give any or any proper weight to the fact two doctors testified that the evidence of the injury sustained by Kessie Dulcie Darby were consistent with a sexual assault case and not a motor vehicle accident.

APPROACH TO APPEALS AGAINST CONVICTION 
5.     To succeed on an appeal against conviction an appellant must establish that:

•	the verdict is unsafe or unsatisfactory, or

•	the conviction entailed a wrong decision on a question of law, or

•	there was a material irregularity in the trial.

6.      In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from Sections 23(1) and 23(2) of the Supreme Court Act, which 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.

7.      The six grounds of appeal are essentially arguments that the conviction is unsafe and unsatisfactory and entailed wrong decisions on questions of law. They fall under Sections 23(1)(a) and (b) of the Supreme Court Act.

GROUND (1): ERROR OF LAW BY FAILING TO GIVE EFFECT TO THE PRESUMPTION OF INNOCENCE

8.      Mr Sheppard for the appellant submitted that the appellant, like every person charged with a criminal offence, was entitled to the full protection of the law and in particular had the right to be presumed innocent, in accordance with Section 37(4)(a) of the Constitution, which provides that a person charged with an offence “shall be presumed innocent until proved guilty according to law”. 

9.     “According to law”, Mr Sheppard submitted, meant that the State was obliged to prove the guilt of the appellant beyond reasonable doubt. He referred to the classic decision of the House of Lords in Woolmington v DPP [1935] AC 1, and the application of that decision in PNG cases such as SC Ref No 1 of 1980; Re s 22A(b) of Police Offences Act (Papua) [1981] PNGLR 28, in support of that proposition.

10.     We have no difficulty with those propositions. It is irrefutable that an accused person must be presumed innocent and can only lawfully be proven guilty if the court insists on the prosecution proving each element of the offence beyond reasonable doubt.

11.     Mr Sheppard submits that the trial judge erred in law by failing to give effect to the presumption of innocence and failing to impose on the State the burden of proving the elements of the offence beyond reasonable doubt,  and this is apparent, he submitted, from the following passage of the judgment, in which his Honour stated:

The evidence at the end of the State’s case was adequate for the court to lawfully convict the accused for the charge of attempted murder. The accused had to adduce evidence to at least create a doubt in relation to any element of the charge.

12.     Mr Sheppard submitted that by stating that it was up to the accused (the appellant) to adduce evidence to create a doubt as to any element of the charge, the trial judge had done away with the presumption of innocence and reversed the onus of proof: it was as if the appellant was presumed guilty and it was up to him to prove his innocence.

13.     We are not persuaded by that argument. His Honour’s statement must be read in context. He had just summarised the evidence for the State and noted that it was “adequate for the court to lawfully convict the accused”. By immediately remarking that “the accused had to adduce evidence to at least create a doubt” his Honour was simply setting out the sort of decision-making process that is often adopted by a trial judge, as the tribunal of fact, in Papua New Guinea. If the trial Judge’s assessment is that the State’s evidence is adequate to support a conviction, it is natural and logical to reflect that the defence case will need to “at  least create a doubt” as to the existence of at least one of the elements of the offence.  

14.     The trial Judge was entitled to give an account of the decision-making process he applied. His Honour was entitled to form a view on the strength of the State’s case and, having formed the view that it was a strong case, to reflect on the reality that the defence would need to at least create a doubt. Such a decision-making process is proper. It does not discard the presumption of innocence. Nor does it mean that his Honour failed to insist on the elements of the offence of attempted murder being proven beyond reasonable doubt. We dismiss ground (1).  

GROUND (2): ERROR OF LAW BY FAILING TO INSIST THAT THE PROSECUTION PROVE ITS CASE BEYOND REASONABLE DOUBT

15.     It is argued that the trial judge failed to apply the criminal standard of proof of beyond reasonable doubt, as evidenced by his Honour’s statement that:

The question for the court is whether the court should believe the complainant or believe the accused.

16.     Mr Sheppard submitted, firstly, that the question of who the court should believe was not the right question to ask. Rather the question should have been posed as ‘whether the prosecution has proven each of the elements of the offence beyond reasonable doubt’. Mr Sheppard submitted, secondly, that the way in which his Honour framed the question demonstrated that he had doubt about whose testimony to believe; and that being the case his Honour should have entered a verdict of not guilty.

Did the trial judge ask the right question? 

17.     We tend to agree with the first of those submissions. It is desirable that a trial judge expressly states that the question is whether the prosecution has proven each of the elements of the offence beyond reasonable doubt. This point has been emphasised by Cannings J in a series of sexual offence cases including The State v James Yali (2005) N2988 and The State v Elias Mautu (2007) N5028. In The State v Henry Levo (2015) N5902, in which the accused was charged with rape, the point was made in these terms:

… the court is not to decide guilt or innocence simply on the basis of whether the complainant’s evidence is believed. The court’s task is, rather, to determine, having weighed all the evidence and considered whether there are reasonable grounds for believing that there was no consent and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists. If there is a reasonable doubt as to an element, the court is obliged to acquit the accused. In this case, the question to ask is whether the prosecution has proven beyond reasonable doubt that the complainant did not consent.

18.     The same point was made in an attempted murder trial, The State v Andrew Sinogup (2015) N5880: 

The Court is faced with two completely different versions of events. Either the complainant or the accused is lying about what happened on the morning of Saturday 25 June 2011 in the bush between Gusin and Sagalau. It is tempting to ask the question ‘who does the Court believe?’ but as I pointed out in The State v James Yali (2005) N2988, the better question to ask is whether the State has proven beyond reasonable doubt the version of events it is contending for, should be accepted. Beyond reasonable doubt is the highest standard of proof known to the law (Vincent Kerry v The State (2007) N3127). 

19.     So, in the present case, we agree that it would have been better for the trial judge to frame the critical question in the terms contended for by Mr Sheppard. His Honour should also have expressly set out the elements of the offence of attempted murder, which are, as explained in The State v Michael Nuli (2011) N4198 and The State v Daniel Kapen (2012) N4895 (relying on R v Ben Forepe [1965-1966] PNGLR 329), that the accused:

•	intended actually to kill the complainant;
•	put his intention into execution by means adapted to its fulfilment;
•	manifested his intention by some overt act; and
•	acted unlawfully. 

20.     However, though it was not the most correct question to ask, it was not wrong in principle for his Honour to pose the question of who should be believed (the complainant or the accused). Unless that question was asked, and answered ‘the complainant’, the Court could not be satisfied that the elements of the offence had been proven beyond reasonable doubt. 

21.     Mr Sheppard did not alert us to any authority that would support the proposition that a trial judge’s failure to expressly refer to the need for the prosecution to prove the elements of the offence beyond reasonable doubt is an error of law. We are unaware of any such authority. We do not propose to regard his Honour’s failure in the present case to state what is fairly regarded as the obvious, as an error of law. We are satisfied that in effect his Honour did apply the correct standard of proof and that he applied it to the elements of the offence of attempted murder. 

Did the trial judge have doubt? 

22.     Mr Sheppard’s second submission was that his Honour was “in doubt” as to whose evidence to believe. We reject this submission as the only fair way to interpret what his Honour said is that he had no doubt about who to believe. His Honour found as a fact that the appellant was not a credible witness and that he gave false testimony and that the evidence of the complainant and other State witnesses was credible and sound. 

23.     His Honour could have expressed those findings more clearly and directly. However there is no doubt that he was not in doubt about whose evidence to believe. We dismiss ground 2. 

GROUND (3): ERROR OF LAW BY TREATING ACCUSED’S BODY LANGUAGE AND FACIAL EXPRESSIONS AS AN ADMISSION OF GUILT

24.     It is argued firstly that the trial judge treated the appellant’s body language and facial expressions as an admission of guilt, and secondly, that this enabled a conviction to be returned notwithstanding that the prosecution did not make out a prima facie case. 

25.     These arguments are based on the following passage from the judgment in which his Honour, immediately after posing the question of whether the court should believe the complainant or the accused, stated:

When the accused gave evidence, I noted something I rarely see in court. He appeared to me to be shy or afraid of the audience sitting in court. I could tell from his body language and his facial expressions. He was not comfortable to the extent that during his testimony he had his arms on the bar table and his head was leaning on his right hand. He maintained this position throughout his testimony. I was of the clear impression that he was telling lies.

26.     We find no merit in these arguments. First, his Honour did not state or find that the appellant’s body language, including facial expressions, was an admission of guilt. His Honour was indicating simply that they were matters he took into account in forming an assessment of the credibility of the appellant’s evidence and drawing the conclusion that the appellant was lying and was not a credible witness. 

27.     Secondly, his Honour did not state or find that the prosecution did not make out a prima facie case.

28.     This ground of appeal is thus based on two false premises – that the trial judge regarded the appellant’s body language as an admission of guilt and that the prosecution did not make out a prima facie case – and must be dismissed.   

GROUND (4): ERROR OF FACT AND LAW BY FAILING TO HAVE REGARD TO OTHER RATIONAL EXPLANATIONS FOR ACCUSED’S BODY LANGUAGE

29.     It is argued that the trial judge erred in fact and law by failing to have regard to alternative explanations for the appellant’s body language, such as being unaccustomed to speaking in a public forum or feeling intimidated in the presence of the alleged victim and her relatives. 

30.     We find no merit in this argument. The trial judge was the tribunal of fact. His Honour was entitled to take into account the demeanour of the accused person while he gave evidence and while he was otherwise in the courtroom. The aspects of an accused person’s demeanour that are given weight in assessing whether the evidence of the accused is credible are matters of discretion for the trial judge to take into account. Provided the judge does not put weight on obviously irrational or irrelevant matters, such as the accused wore a bright shirt or that he comes from a certain part of the country and cannot be trusted, the range of relevant matters is broad.

31.     The determination of whether a person is a truthful or an untruthful witness inevitably involves an intuitive assessment of the person’s body language, considered in the context of the evidence before the court. It will be in most cases, and was in the present case, a relevant consideration.

32.     It is not generally proper for the Supreme Court to second-guess a trial judge’s assessment of whether a witness, including the accused, has told the truth (Rimbink Pato v Umbu Pupu [1986] PNGLR 310, Welsh Samor v The State (2014) SC1398, Kelly Kai Kapuni v The State (2016) SC1506). Unless there are exceptional circumstances (such as existed, for example, in Andrew Palili v The State (2006) SC848) the superior position of the trial judge must be respected. As Miles J stated in Brian John Lewis v The State [1980] PNGLR 219:

On a question of credit of a witness the trial judge is in a superior position and his assessment is not likely to be rejected. Where the decision is ultimately and largely an individual matter of opinion, for instance in apportioning blame for contributory negligence, or assessing damages for pain and suffering, the trial judge's finding, based on his own opinions, should carry substantial weight. So too where the finding is one of a "primary fact" or "evidentiary fact" rather than an inference from such facts (if the distinction may be drawn), the trial judge's decision should rarely be disturbed. 

33.      Here the trial judge properly took into account the body language including facial expressions of the appellant as part of his assessment of the demeanour of the appellant. His Honour’s finding that the demeanour was unsatisfactory and indicative of the fact that the appellant was not a credible witness was unsurprising. His Honour was not obliged to expressly set out alternative rational explanations of the appellant’s demeanour. We find no error of fact or law in the manner alleged. Ground 4 is dismissed. 

GROUND (5): ERROR OF FACT AND LAW BY FAILING TO MAKE AN INDEPENDENT ASSESSMENT OF THE ACCUSED’S WITNESSES

34.     The appellant argues that the trial judge erred in fact and law by basing an adverse assessment of a defence witness on an adverse assessment of the appellant’s evidence.  

35.     This argument is based on the following passage from the judgment in which his Honour, after stating that the body language of the appellant gave the impression that he was telling lies, stated:

His failure to impress me as a credible witness casts a shadow of doubt over his witnesses, especially, the other security guard who gave evidence about seeing some youths dragging a New Guinea Island female into a dark spot where she was sexually abused.	

36.     Mr Sheppard submitted that his Honour should have assessed the evidence of the security guard referred to (the fifth defence witness, Sawa Mino) “independently with an open mind and not with an external “shadow” over their evidence”. 

37.     We find no merit in this submission, which would involve imposing on a trial judge an artificial and unrealistic decision-making model. At the stage of the judgment that his Honour made the comment that a “shadow of doubt” was cast on the appellant’s witnesses – and actually his Honour could only have been referring to Sawa Mino as none of the other defence witnesses were eyewitnesses to the incident – his Honour had found:

•	that the State’s case (anchored by the complainant’s evidence and corroborated by the evidence of three security guards who were present in the carpark) was adequate to support a conviction;

•	that the appellant had to adduce evidence to at least create a doubt in relation to an element of the charge;

•	that the question was whether the court should believe the complainant or believe the accused; and 

•	that the accused gave the impression that he was telling lies and that he was not a credible witness.

38.     It was unremarkable in these circumstances that his Honour would comment that a shadow of doubt was cast over the evidence of Sawa Mino. That was an innocuous and predictable comment to make, especially as the version of events given by Mr Mino – that the complainant was not run over by a vehicle at all, but she was sexually assaulted by unknown persons – was never put to the complainant or the other State witnesses, in breach of the rule in Browne v Dunn (1893) 6 R 67 (HL). We dismiss ground 5. 

GROUND (6): ERROR OF LAW BY FAILING TO MAKE PROPER ASSESSMENT OF MEDICAL EVIDENCE

39.     It is argued that his Honour erred in law by failing to give any weight to the evidence of two doctors, Dr Waramin and Dr Sapuri, who testified that the complainant, who was admitted to Port Moresby General Hospital for almost two months after the incident, was treated for vaginal injuries, which were not consistent with the State’s case that she was run over by a motor vehicle.

40.     His Honour dealt with the evidence of those two doctors, which was put as part of the defence case that the appellant did not bump or run over the complainant but had been sexually assaulted after her altercation with the appellant, in the following way:

The defence witness’s, as well as the two doctors’, evidence were, in any case, adduced unfairly. The defence used these witnesses to support their contention that the complainant was sexually assaulted by youths when she walked out from the driveway. But this contention was never put to the complainant and the prosecution’s witnesses when they gave evidence. How can I even consider this contention if the complainant has not been given the opportunity to hear it and either deny it or admit it? It was blatant disregard of the rule of fairness in Browne v Dunn, especially, when I have in the past, told counsels to observe the rule in Browne v Dunn. This is not a mere breach. It is unfair to allege or claim anything against someone without according that person the right to be heard. When considered with the poor performance by the accused, it is open to the court to reject the defence evidence and the court does so. 

41.     By referring to the rule in Browne v Dunn his Honour was referring to the fundamental rule of procedural fairness that applies in all criminal trials, arising from the classic case of Browne v Dunn (1893) 6 R 67 (HL). The central planks of the defence case must be put to the State witnesses – to give them the opportunity to rebut it – if the defence case is to have any credence (Kutau v The State (2007) SC927). 

42.     We consider that the way in which the defence case was conducted – providing an alternative explanation for the complainant being admitted to hospital (as she had been sexually assaulted) so as to support the appellant’s evidence that he did not bump or run over the complainant, without putting to the complainant that she had been sexually assaulted – gave the trial judge no option but to invoke the rule in Browne v Dunn and summarily reject the defence case.

43.     Mr Sheppard submitted that even though there may have been a breach of the rule in Browne v Dunn, his Honour should nevertheless have considerable given weight to the evidence of the two doctors that the nature of the injuries sustained by the complainant were not consistent with her being bumped or run over by a vehicle.  

44.     We have great difficulty appreciating the worth of this submission. There was a report in evidence by Dr Urakoko, orthopaedic surgeon, dated 12 April 2013. This showed that the complainant had presented to the Emergency Department of the hospital after being “alleged to have been hit and run over by a moving vehicle”.  She was “in apparent distress from generalised body pain, unable to move both lower limbs, laceration/amputation of her right ear”. Radiographic examination revealed a “thoracic spine fracture dislocation (T11 – T12 vertebrae) with displacement of more than 50% and a fracture dislocation of 11th/12th rib laterally”. As to the prognosis, Dr Urakoko noted that the chances of the complainant being able to recover from a damaged spinal cord were “unpredictable” and that there was a possibility of “permanent paraplegia”. Clearly evidence of such types of injuries was consistent with the complainant having been bumped and/or run over by a vehicle and supported the State’s case.

45.     If the trial judge had been persuaded to put weight on the evidence of Dr Waramin and Dr Sapuri, what was the relevance of it? The “injuries” that those doctors were commenting on were vaginal and other gynaecological injuries, which came to light, due to malodorous vaginal discharges, 12 days after admission the complainant’s admission to hospital,  having been admitted due to a spinal injury and paraplegic symptoms. Dr Waramin and Dr Sapuri regarded those injuries as being consistent with a sexual assault of the complainant, and not consistent with her being bumped and/or run over by a vehicle. Such opinions, in our opinion, border on common sense. Those doctors did not provide an opinion on whether the complainant’s spinal injuries were consistent with her being bumped and/or run over by a vehicle. 

46.     We agree with the description that Mr McPhee, for the State, gave to this attempt to discredit the State’s case. It was a Straw Man argument. The defence was introducing irrelevant evidence about the complainant’s vaginal injury, and making out that that evidence formed part of the State’s case, and then refuting it and arguing that this undermined the State’s case.   

47.     We find no error in law in the manner in which the trial judge dealt with the medical evidence. We dismiss ground 6.

ADDITIONAL ARGUMENTS FOR THE APPELLANT 

48.     We now address two arguments for the appellant that do not fall within any of the grounds of appeal. Mr Sheppard tried to convince us that they could be included in ground 1 as further examples of the way in which the trial judge failed to apply the presumption of evidence. But we are not convinced. They are discrete arguments, which should have been included as separate grounds of appeal. Alternatively the appellant’s counsel should have sought leave to add them to the grounds of appeal. However, he did not do so. 

49.     Strictly speaking we are not obliged to consider them but we have decided to address them as Mr Sheppard emphasised the first one, which can be called the “impossibility” argument, in his oral submission; and the second one, which can be called an “inconsistency” argument, was included in Mr Sheppard’s written submission. 

50.     Before dealing with them, it is worth noting that the written submission did not correlate directly with the grounds of appeal and the oral submission did not correlate with the written submission or the grounds of appeal. Mr McPhee, for the State, however, did not formally object to all of these arguments being entertained and responded very capably to them. Hence we have determined all arguments put on behalf of the appellant. 

“Impossibility” argument

51.     The first argument is that the trial judge erred in law by accepting the complainant’s evidence as it was obviously false, due to it being “impossible” for her to have been run over by a vehicle, especially a Toyota  Landcruiser, and only to have suffered minor injuries of the type she is said to have received.

52.     We consider that the argument is worthless. The medical evidence shows that the complainant did not receive only minor injuries. There was evidence of a seriously damaged spinal cord and of a shorn ear, consistent with the State’s case that the complainant was bumped from behind by the vehicle driven by the appellant and that one of the wheels ran over her right ear. Besides that, there was no evidence at the trial that it was “impossible” for a person to have been run over by a vehicle and “only” suffer the injuries of which there was evidence. Mr Sheppard’s opinion, proffered at the appeal hearing, that it was “impossible”, is of course entirely valueless, but even if it were worth considering, we would not share it. 

“Inconsistency” argument

53.     It is argued that there were major inconsistencies in the evidence of the State witnesses, in particular in the evidence of security guards James Ceepie and Roland Watuna who gave evidence of being in the carpark and witnessing the altercation between the appellant and the complainant and its aftermath. The purported inconsistency is claimed, in Mr Sheppard’s written submission, to have been this:

•	Mr Ceepie denied seeing the appellant’s car bump the complainant but assumed it did; whereas

•	Mr Watuna denied seeing the vehicle bump the complainant. 

54.     The argument is hollow. Both witnesses gave evidence of being present in the carpark. They both witnessed the altercation and the appellant’s repeated attempts to get the complainant in the vehicle and the complainant’s movement into and out of the vehicle. They both saw the appellant driving the vehicle at the complainant. It is correct that both witnesses fell short of saying that they directly saw the complainant hit by the appellant’s vehicle. This is understandable as both witnesses said that they were concerned about their personal safety as it was a dramatic incident involving a moving vehicle being driven at some times in their direction. But they did not “deny” seeing the vehicle bump the complainant. They each saw the complainant on the ground immediately after the appellant drove off. The only reasonable inference to be drawn from their evidence is that the appellant deliberately drove his vehicle at the complainant and bumped her, causing her to fall. 

55.     There was no inconsistency in the evidence of Mr Ceepie and Mr Watuna. Moreover, their evidence was consistent with that of the complainant and another security guard, Pentana Bob, which was that the appellant deliberately drove his vehicle at the complainant and bumped her, causing her to fall, and that he drove the vehicle over the top of her. 

CONCLUSION 

56.     We have dismissed all grounds of appeal as well as other arguments put on behalf of the appellant contesting the guilty verdict. None of them show that the conviction was unsafe or unsatisfactory or entailed wrong decisions on questions of law.  There was no miscarriage of justice. The appeal must be dismissed. 

ORDER

(1)	The appeal is dismissed.

(2)	The decision of the National Court is affirmed. 
_________________________________________________________________Young & Williams: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent