SC1658

PAPUA NEW GUINEA 
[In the Supreme Court of Justice]

SC Rev 63 & 64 of 2013

Between:
SELMAN EMOS and
MISIALIS EMOS
Applicants

And:
THE STATE
Respondent

 Kokopo:  Gavara-Nanu, Mogish, Hartshorn, Kangwia & 		       Pitpit, JJ
				2016:  25 October
				2017:  11 December

JUDICIAL REVIEW - Application for judicial review against convictions and sentences – three counts of wilful murder - findings of guilt on each count after trial – maximum penalty of death given to each applicant. 

JUDICIAL REVIEW- errors in findings of fact –– uncorroborated evidence of an accomplice – principal witness - dangers of relying on such evidence - failure of the trial judge to warn himself of such danger.

JUDICIAL REVIEW – vital evidence overlooked and not taken into account - Relevant principles of law misapplied - irrelevant considerations taken into account– Applications granted.

Facts

The applicants who are a father (Selman) and son (Misialis) were both charged with three counts of wilful murder. The applicants denied all three charges. The offences were alleged to have been committed on 31 July, 2008, at Tokarkar plantation mangroves near Kokopo, East New Britain Province. The applicants were each convicted of all three counts of wilful murder on 14 November, 2012 after a long trial, they were each sentenced to death on 14 December, 2012. 

The State alleged that Selman conspired with a man by the name of Willie in the evening of 29 July, 2008, to kill the three deceased. It was alleged that as a result guns and dinghies were arranged by Willie with the assistance of three other men to kill the deceased. 

On the next morning on 31 July, 2012, Selman got on a dinghy at Kokopo beach to go to West Coast, Namatanai. In that boat were the three deceased. According to Selman, soon after the dinghy left Kokopo, it developed engine problems, the sea at that time was very rough and there were strong winds. This is not disputed. 

According to Selman, their dinghy sank in the high seas with all its cargo after it was hit by strong currents. He managed to swim to a nearby Island in the Duke of York Islands to seek help. He was rescued near a village called Mareng. The other passengers died in the seas by drowning sometime after Selman left them.

The prosecution on the other hand relied on the evidence of an accomplice who told the Court that he and the men that Selman secured to kill the three deceased, followed Selman and the deceased in another boat on the morning of 31 July, 2012. When they caught up with them in the high seas, the deceased were ordered to return to Tokarkar plantation mangroves near Kokopo. When they arrived there they were all shot dead. The deceased were buried among the mangroves. Selman was then dropped off somewhere near Mareng village where there were rocks, in the dinghy that was used by the three men. The accomplice’s evidence was not corroborated, but this evidence was relied upon heavily by the trial judge to convict the applicants of the charges. The trial judge did not warn himself of the dangers in accepting and relying on the uncorroborated evidence of the accomplice to make findings of guilt. 

Held 

1.  	The failure by the trail judge to warn himself of the dangers of accepting 	and relying upon the uncorroborated evidence of an accomplice to make 	findings of guilt was a fundamental error of law. Abraham Saka v. The 	State (2003) SC719, followed.

2.	The trial judge either overlooked or ignored crucial evidence which, with 	closer and proper attention, would have created doubts in his mind as to 	the guilt of the applicants. This led to the trial judge making findings 	which were against the evidence and the weight of the evidence. Les 	Curlewis v. David Yuapa (2013) SC1274 and Kawaso Ltd v. Oil Search 	PNG Ltd (2012) SC1218 followed. House v. King [1936] 55 CLR 499; 	Micallef v. ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 	and Air Marshall MacCormack & Anor v. Vance [2008] ACTA 16, 	adopted.    

3.	The trial judge should not have given any weight to the evidence of 	an 	accomplice which was not corroborated by any independent evidence. 	Especially where the evidence was weak and unreliable and marred by 	inconsistencies: The State v. Joseph Tapa [1978] PNGLR 134 adopted 	with approval.   

Cases Cited:		    
Papua New Guinea Cases

Abraham Saka v. The State (2003) SC719
Alphonse Tay v. Newcombe Gerau (2011) SC1097
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Application by John Madison and Bank of South Pacific Ltd (2009) SC984
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No.2) [1982] PNGLR 44
Benjamin Sengi v. The State (2015) SC1425
Devlyn David v. The State [2006] PNGLR 187
John Beng v. The State [1977] PNGLR 115
Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218
Les Curlewis v. David Yuapa (2013) SC1274
Private Nebare Dege v. The State (2009) SC 1308
Sakai Saraga v. The State (2017) SC1592
The State v. Amoko Amoko [1981] PNGLR 373
The State v. Ben Noel (2002) N2253
The State v. Francis Natuwohala Laumadava [1994] PNGLR 291
The State v. Joseph Tapa [1978] PNGLR 134
The State v. Nataemo Wanu [1977] PNGLR 152
The State v. Selmon Emos (No.2) (2012) N5072 
The State v. Tom Morris [1981] PNGLR 493
The State v. Titeve Fineko [1978] PNGLR 262

Overseas cases

Air Marshall McCormack and Anor v. Vance [2008] ACTA 16
Barca v. The Queen (1975) 133 CLR 82
House v. The King [1936] HCA 40; (1936) 55 CLR 499
Micallef v. ICI Australia Operations PTY Ltd & Anor [2001] NSWCA 274

Legislation referred to
Criminal Code

Counsel:

Philip Kaluwin, for the Applicants
Pondros Kaluwin, for the State

11th December, 2017

1.	GAVARA-NANU J: 	I have had the benefit of reading the judgment of Hartshorn J, and I respectfully concur with his Honour’s conclusions.  I would nonetheless like to add some observations of my own.

2.	The two applicants are a father and son.  They were both charged on an indictment that they on 31 July, 2008 at Tokarkar plantation mangroves, Kokopo wilfully murdered Koli Sapau, Neson Koli and Lomki Wanam contrary to section 299 of the Criminal Code. The charges contained three separate counts of wilful murder. The applicants denied all charges. However, they were each convicted of all three counts of wilful murder on 14 November, 2012, by Lenalia J, in Kokopo after a long trial.  On 14 December, 2012, they were both sentenced to death.  They now apply for review against both their convictions and sentences.

3.	Going by their respective records of interview and the respective Information laid against them in the District Court, Selman Emos (Selman) who is the father had his age recorded as 61 years and Misialis Emos (Misialis) who is the son had his age recorded as 31 years.  That was in March, 2011.  So at the time of the alleged offences, viz 31 July, 2008, they would have been aged about 58 and 28 years respectively.  However it is noted that in his evidence in- chief, Selman told the Court that he was aged 56 years after he was asked by the defence counsel if he was aged 65 years. Quite clearly he gave his age as 56 years when correcting the defence counsel whose question suggested that he was 65 years old. That evidence was given on 4 May, 2012.  By this evidence Selman’s age at the time of the alleged offences was 52 years.  This was not challenged in cross-examination, thus I am inclined to accept that Selman was aged 52 at the time of the alleged offences. This point is important and I will return to it later in the judgment.

4.	The learned trial judge relied heavily on the evidence of an accomplice one Kiliaon Kamlapar (Kiliaon) who allegedly witnessed the killings of the three deceased. He was from Kaboman village in West Coast, Namatanai. The applicants come from Kait village also in West Coast, Namatanai. The two villages are not far from each other and Kiliaon and the applicants knew each other before the alleged killings.

5. 	It is convenient at this juncture to mention that Kiliaon and his family had a long standing grudge towards the applicants even up to the time of the alleged killings. The grudge had its genesis in the eviction of Kiliaon and his family some years prior to the alleged killings from Karias plantation in West Coast, Namatanai, by the police after Selman bought that plantation from its previous owner. 

6. 	It is also important to note that Selman was once the President of the Local- Level Government in his area. This is in my view a relevant matter and is worth noting because it is a matter of public knowledge that persons holding such high and important positions earn high popularity and command respect among the communities of their constituencies. Thus, to me it was not surprising that he had the assistance of the police to evict Kiliaon and his family from the plantation.

7. 	The relevant facts regarding the alleged killings are as follows. In the early morning of 31 July, 2008, Selman and all three deceased left Kokopo beach for their villages in West Coast, Namatanai, in a banana boat called Sparrow Fly. According to Selman, sometime after they left Kokopo beach, the boat developed engine problem in the high seas and stopped.  This is not disputed. 

8. 	It is an undisputed fact that on that morning, the sea was very rough and there were strong winds. In fact one passenger who got on Sparrow Fly with Selman and the three deceased at Kokopo beach decided at the last minute to get off the boat because he was fearful of the rough seas. To me that said a lot about how rough and dangerous the sea was.

9.	One of the deceased who was controlling the boat managed to restart the engine after it stopped but because of the problem with the engine the boat continued its journey at a reduced speed. 

Selman’s evidence after the boat had engine problem at the high seas

10. 	Selman told the Court that they were well into the high seas when a big wave hit the boat causing it to overturn and sink with all its cargo. He said he and the three deceased managed to remove the timbers that were kept in the boat to hold on to stay afloat as they tried to swim ashore. They prayed before attempting to swim towards West Coast, Namatanai, however they were swept away by strong currents and started to drift towards the Duke of York islands. About this time Selman suggested to the two younger men (now deceased) if they could swim to a nearby island and get help. He said the two young men were reluctant because they were very drunk. He said they started drinking the previous night. They also had a 6 pack (beer) on the boat. He then told them that he would try and swim to an island and get help. Before he left them, they had a prayer. He then started swimming to the land. He said he would swim for a while and rest by spreading his hands out on top of the water and allow himself to float and allow the waves to carry him. He said he did that many times until he was near Mareng village. He kept swimming towards the village, at the same time calling for help. 

11. 	A prosecution witness from Mareng village who was climbing a betel nut tree upon hearing Selman’s distress calls, climbed down the betel nut tree, got his torch and went to the beach to check. This witness said he and some other villagers got a canoe and paddled to Selman. The distance from the beach to where Selman was found was estimated by this witness to be about 3 kilometers. This is not disputed. The canoe used by the witness and other villagers to rescue Selman sank in the sea so the villagers assisted Selman to swim ashore. This witness told the Court that when they reached Selman he was swimming towards the shore. Selman had no clothes on him except his underpants. He was given some clothes at the beach and the villagers helped him walk to a house where water was boiled for him to have his wash. He was then given clean clothes to change into and food to eat. There is evidence that he had burns on his body. In fact the learned trial judge noted this in his decision on verdict. Selman told the villagers that there were three other men still out in the sea so the villagers organized a search party to look for them but they found that the sea was very rough so they returned to the village. Selman was taken to the village councilor’s house to sleep.

12. 	It is to be noted that Misialis did not travel on Sparrow Fly that morning with his father and the three deceased. He stayed back in Kokopo. He said about 10.00pm that night a village councilor from Mareng village called him on his mobile phone and told him that his father had swam ashore at Mareng village. This evidence corroborated the evidence not only of Selman that he slept in the village councilor’s house that night but also of the people from Mareng village who were called as prosecution witnesses who said Selman was taken to the village councilor’s house to sleep. Misialis said after receiving that call, he went and reported the matter to the National Disaster and Emergency office. 
        
Evidence of an accomplice

13. 	The pertinent aspects of Kiliaon’s evidence may be summarized as follows. Selman and a man named Willie had a discussion in the previous evening at Skowhegan at Kokopo, for Willie to secure a boat and some people to assist in killing the three deceased. Following that discussion, Willie left. He returned later at about 1.00am with three men whom Kiliaon named as John Bighead, Joe Tikis and Robert. He said Willie also brought a factory made shotgun wrapped in a cloth (laplap). The next morning, John Bighead, Joe Tikis, Robert and him went by another boat, they met up with Sparrow Fly in the high seas. John Bighead then pointed a gun at one of the deceased who was controlling Sparrow Fly and told him to head to Tokarkar plantation mangroves. When they got there, John Bighead shot the three deceased one after the other. He said the three fell down in the boat (Sparrow Fly) as they were shot, they including Selman then buried the three deceased among the mangroves swamp by jumping on top of their dead bodies into the mud. Selman then gave Willie cash totaling K18,000.00. Kiliaon was then told by Willie to take Selman to Mareng village in the boat they used which was called Las Ples. He did not say who accompanied him in that boat, but he said they drove Selman to a spot near Mareng village which had stones so Selman “jumped off” the boat and they returned to the scene of the alleged killings. He was told by Willie to take Sparrow Fly to its owner but he did not because he feared that Misialis might kill him. They then travelled to Tokubar beach where they shared the money. They were each given K1, 500.00 the balance was kept for the gun owner. He said when going to Tokubar beach because he was fearful of Misialis, Sparrow Fly was driven by Joe Tikis. He said when they arrived at Tokubar beach, the blood from deceased was still in the boat. 

Trial judge’s decision on verdict      

14. 	The learned trial judge relied heavily on the evidence of Kiliaon, who he described as the “key” prosecution witness, to find the two applicants guilty of the three counts of wilful murder. The evidence of other prosecution witnesses were only circumstantial, which his Honour found were “linked” to Kiliaon’s evidence. 

15.	Applying the principles enunciated in Barca v. The Queen (1975) 133 C.L.R 82, regarding circumstantial evidence, which were adopted in this jurisdiction in The State v. Tom Morris [1981] PNGLR 493, his Honour in discussing  circumstantial evidence of other prosecution witnesses said he found that the only rational inference he could draw from the evidence was that the applicants were guilty of the offences charged. It is to be noted that his Honour drew this inference after warning himself of the dangers in accepting circumstantial evidence to findings of guilt. 

16.	The pertinent parts of his Honour’s decision are reproduced below:

		“…I must warn myself about the dangers of convicting the two 		accused on circumstantial evidence and I do further say that 		any inferences that this court draws must not be ‘the product 		of the speculative evidence, mere conjuncture (sic.), guess or 		surmise or a definite inference’ which factors are dependent 		on the process of evaluation and judgment that are not always 		susceptible to strict logical analysis.

…But to enable this court ‘to be satisfied beyond reasonable doubt of the guilt of the two accused it is necessary not only that their guilt should be a rational inference but that it should and must be the only rational inference that the circumstances would enable this court to draw: Plomp v. The Queen (1963) 110 C.L.R 234; Allan Oa Koroka v. The State [1988-89] PNGLR 131 and see also The State v. Jacob Dugura Roy (2007) N3137.

I find the defence evidence to be illogical and plain fallacy amidst the prosecution case which I find credible. Linking the inferences from the evidence of the first witness (Kiliaon Kamlapar) about him witnessing the killing…”. 

…What inference should the court draw from the evidence by the key witness of how the boat key of the Sparrow Fly boat (sic.) got into the hands of Kiliaon Kamlapar (key witness). The boat key of the Sparrow Fly boat (sic.) that was tendered as Ex. “F” is No.408 corresponds with the number that was given by the owner of the Sparrow Fly boat David Kasemba on his oral evidence. Had the Sparrow Fly boat sank, how did its key come to Kiliaon’s possession?    

…The court accepts the evidence by Kiliaon Kamlapar that after the killing, he was directed to skipper the Sparrow Fly boat to Duke of York where the first accused Selman Amos was dropped off somewhere near Maren (sic.) village beach.

…According to this witness (Japeth Balaut of Mareng village – a prosecution witness), he observed the first accused (sic.) appearance to be normal and he appeared not to look tired and observed him to be full of vigour. What inference should the court draw from this piece of evidence? The evidence I must draw is that the accused Selman Emos did not swim to Maren (sic.) beach as the result of the boat Sparrow Fly being sunk or capsized.

On the matter of credibility and the issue of whose evidence should the court accept as credible and give weight to. By the evidence presented to the court on this trial, I take State’s evidence as credible and by such evidence I am satisfied that the inference which I have drawn is not only a rational inference but it is the “only rational inference that the circumstances of the evidence has enable (sic.) me to draw”.

The biggest mystery or unexplained part of the evidence before this court is if the Sparrow Fly boat sank, how did its key got saved from sinking if the skipper of that boat drowned together with two others. The evidence by the first accused is the Sparrow Fly sank in the rough seas and the boat went down into the sea together with all the cargoes (sic). 

The issue now is how did the boat key N.408 (sic.) get into the hand (sic.) of Kiliaon Kamlapar? The owner of the “sparrow fly” boat David Kesemba confirmed that, the number of the key to his boat was N. 408 (sic.)”.

17.	With the greatest of respect, I find his Honour’s decision to be seriously flawed with glaring errors as to his findings of fact and application of the relevant principles of law.

Wrong findings of fact     

18.	Most glaring errors relate to his Honour’s findings that Kiliaon used Sparrow Fly to “drop off” Selman “somewhere near Maren (sic.) beach”. These findings constitute very crucial errors. The first error is the boat that was allegedly used by Kiliaon to take Selman to Mareng village. His Honour said it was Sparrow Fly, but according to Kiliaon’s evidence, he used Las Ples. The second error is that his Honour said Selman was dropped somewhere near Mareng beach. The undisputed evidence given by the prosecution witnesses from Mareng village was that they rescued Selman about 3 kilometers from the beach. They said when they reached Selman he was swimming towards the beach. Thus his Honour’s findings were against the evidence and the weight of the evidence.

19.	The evidence of Kiliaon on this point was incredible, it could not ‘hold water’ because he said they dropped Selman where there were stones and Selman “jumped off” the boat. His Honour also said when Selman was ashore at Mareng village he was “full of vigour”. There was no evidence at all upon which his Honour could make such finding. This clearly was an over statement and the finding was again against the evidence and the weight of the evidence. His Honour quite plainly either ignored or overlooked the undisputed evidence of the prosecution witnesses from Mareng village that Selman was about 3 kilometers from the beach and was still swimming when he was rescued. His Honour also made no mention of the fact that the villagers went in a canoe to rescue Selman and the canoe sank in the sea. Also, although his Honour noted in his decision that Selman had burns on his body, the point was not addressed. It was a significant piece of evidence because it was consistent with Selman being out in the open sea the whole day. The evidence was that he was only wearing underpants, which means the rest of his body was exposed to the sun that whole day.  Going by Selman’s evidence he would have drifted and swam in the seas at least from around 9am to about 6.30pm when he was rescued. It is not in dispute that by the time Selman was rescued, it was already dark.  

20.	It was suggested by the prosecution that Selman was too old to have survived the rough seas. However, apart from his explanations on how he survived and swam to Mareng village, it is to be noted that on the day he gave his evidence, which was 4 May, 2012, he told the Court that his age was 56 years. As noted earlier, that placed his age at the time of the alleged offences, viz 31 July, 2008 at 52 years. Men of that age can survive even in rough seas if they are physically fit and active. In Selman’s case, he was from a coastal village from that area and was familiar with the seas and the nearby islands so in my view it was not impossible for him to swim and survive that long in the sea and eventually swim to Mareng village. He also told the Court that he was able to stay afloat and swim by holding on to a timber he removed from Sparrow Fly. He also told the Court that strong current swept him towards the Duke of York Islands. 

21.	When comparing Selman’s evidence with that of Kiliaon’s, Selman’s is more believable because if one was to go by Kiliaon’s evidence, the alleged killings would have taken place in the morning sometime after Sparrow Fly developed engine problem. Then Selman would have been dropped off somewhere near Mareng village sometime in the afternoon. That cannot make sense because Selman’s calls for help were heard by Mareng villagers early in the evening and by then the place was already dark.  Then there is the evidence that Selman had burns on his body. The evidence of Selman is clearly more credible than that of Kiliaon.

22.	There were other very significant aspects of Selman’s evidence which his Honour also failed to address his mind to, viz; the treacherous conditions of the sea. The undisputed evidence was that the sea was very rough. In my view this evidence added weight and credibility to Selman’s evidence that the three deceased drowned in the sea. There was also evidence that the two young men (deceased) were very drunk and they could not swim. This was another reason why it made sense that the two young men could have drowned. As to the third deceased, he was the father of one of the two young men, so again it made sense that as a father he could not leave his son so he also drowned or he may have attempted to swim ashore but drowned due to the rough seas. Either way one looks at Selman’s evidence, it was logical and it made sense. This should have raised serious doubts in his Honour’s mind about Kiliaon’s evidence.  

23.	The other significant error in his Honour’s findings appears to have flowed on from his erroneous finding that Selman was dropped off by Sparrow Fly at Mareng. This led to his Honour also making erroneous findings about the key to Sparrow Fly. His Honour asked as part of his findings - “How was it that Kiliaon had the Sparrow Fly key when Selman’s evidence was that Sparrow Fly sank in the seas?” Here, his Honour was clearly implying that if Sparrow Fly had sank in the sea as claimed by Selman then its key should have also gone down with it in the sea and got lost. As far as his Honour was concerned that could not possibly be the case because Sparrow Fly was used by Kiliaon to drop off Selman at Mareng Village and Kiliaon had the key to Sparrow Fly. The upshot of his Honour’s observations was that Selman had lied to the Court about Sparrow Fly sinking in the sea. It seems to me that his Honour’s misunderstandings regarding Sparrow Fly and its key, dominated his thinking throughout the trial which subsequently led to his erroneous findings of fact in his decision on verdict. This resulted in his Honour making findings which were against the evidence and the weight of the evidence.     

24.	His Honour had therefore with respect misdirected himself on the relevant principles of law and overlooked crucial pieces of evidence, which could have at least created doubt in his mind about Kiliaon’s evidence that he had the key to Sparrow Fly. Looking at Kiliaon’s evidence regarding Sparrow Fly and its key, it stands out as a most incredible and intriguing piece of evidence. He told the Court that he gave the Sparrow Fly key to two different people, namely, Polen Yagiri and Luke Aikos. He said he gave the key to Luke Aikos at the beach at Kokopo the day after the killing before he allegedly gave the same key to the owner David Kesemba sometime later. The same key was allegedly given to these three people at different times and places. Surely this kind of inconsistency in Kiliaon’s evidence should have immediately raised serious doubts about the credibility of the whole of Kiliaon’s evidence. His Honour failed to direct his mind to these inconsistencies in Kiliaon’s evidence. Besides these discrepancies in Kiliaon’s evidence was the undisputed evidence that a boat could be started by any other key belonging to another boat. This evidence opened all sorts of possibilities regarding the Sparrow Fly key. For instance, it is possible that Sparrow Fly may have been started by a key belonging to another boat on the day it disappeared and Kiliaon had the actual key to Sparrow Fly which he later gave to the owner David Kesemba. But then other questions arise as to which key did Kiliaon give to Polen Yagiri and Luke Aikon? Given all these questions, Kiliaon’s evidence was far from being truthful, especially when Sparrow Fly has never been found since the day of the incident let alone brought to its owner despite claims by Kiliaon that Sparrow Fly did not sink. Logically, if Kiliaon had the key to Sparrow Fly then he knew or should have known where Sparrow Fly was but he offered no evidence to answer this vital question. 
   
25.	His Honour also said the applicants failed to establish a motive for the prosecution witnesses to lie. Again, this finding was against the evidence and the weight of the evidence because it was established by undisputed evidence that Kiliaon and his family had grudges against the applicants after Kiliaon’s family was forcefully evicted by the police from a plantation owned by the applicants. Selman indeed told the Court that this was the “real reason” Kiliaon made up stories against him and his son. His Honour in his ruling on verdict also said it was Joe Tikis who shot the deceased at the Tokarkar mangroves but according to Kiliaon, it was John Bighead who shot them. This is another clear indication that his Honour did not pay full and proper attention to the evidence. 

26.	Then there was the evidence of John Bighead who was called as a defence witness. He denied shooting the deceased as claimed by Kiliaon. He said he had disability with his arm and it was not possible for him to hold a gun, let alone shoot with it. This should have again raised serious doubts in his Honour’s mind whether Kiliaon was telling the truth. This was a very crucial piece of evidence yet it was either ignored or overlooked by his Honour and he failed to address it. This was in my view a pivotal and determinative piece of evidence.  

27.	The learned trial judge quite clearly either made wrong findings of fact or overlooked vital evidence or took into account irrelevant matters as demonstrated above. These are strong grounds upon which an appeal or an application for review can be allowed or granted. The relevant principles regarding this issue were broadly stated by the High Court of Australia in the oft. cited case of House v. The King [1936] H.C.A 40; (1936) 55 C.L.R 499 at 504-505, per Dixon, Evatt and McTiernan JJ: 

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

28.	The principles were restated in the case of Micallef v. ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274, where Heydon JA (Sheller JA and Studdert AJA agreeing) said at [45]:

“As a result, Garling DCJ had to make a discretionary decision on a matter of practice and procedure – an extremely important one, having potentially serious consequences for the plaintiff, but a discretionary decision on a matter of practice and procedure nonetheless. Any attack on decision of that character must fail unless it can be demonstrated that the decision-maker:

	(a) made an error of legal principle,
	(b) made a material error of fact,
	(c) took into account some irrelevant matter,
	(d) failed to take into account, or gave insufficient weight 	to, some relevant matter, or
	(e) arrived at a result so unreasonable or unjust as to 	suggest that one of the foregoing categories of error had 	occurred, even though the error in question did not 	explicitly appear on the face of the reasoning”.

29.	These principles were later adopted in Air Marshall McCormack and Anor v. Vance [2008] ACTA 16, which was cited with approval by the Supreme Court in Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218. See also, Les Curlewis v. David Yuapa (2013) SC1274. 

30.  The observations by the appellate courts in above cases relate to the exercise of discretion by a primary judge in a case, whether civil or criminal, to arrive at certain decisions. Thus the principles are in my view equally applicable to these applications. 

Failure of the trial judge to warn himself of the dangers in accepting the uncorroborated evidence of an accomplice
 
31.	His Honour was required by law to warn himself of the dangers in accepting uncorroborated evidence of an accomplice. In this case, there is no evidence that the learned trial judge warned himself before accepting and relying upon the evidence of Kiliaon to make findings of guilt. Whilst there is no rule against convicting on an uncorroborated evidence of an accomplice, if there had to be conviction based on such uncorroborated evidence, it was incumbent on the trial judge to first warn himself of the dangers in accepting and relying upon such evidence and second, the evidence had to be strong, cogent and convincing: The State v. Francis Natuwohala Laumadava [1994] PNGLR 291; The State v. Titeve Fineko [1978] PNGLR 262 and The State v. Amoko Amoko [1981] PNGLR 373. The rationale behind the learned trial judge warning himself of such dangers is that the witness could lie, exaggerate or make false accusations to minimize his role in the crime or to shift blame on someone else for ulterior reasons and so on: The State v. Nataemo Wanu [1977] PNGLR 152. The warning is also necessary to ensure that the witness is credible. If an accomplice’s evidence is the only evidence then it will be a question of what weight should be given to it, and if the evidence is unreliable and is marred by inconsistencies as in this case, then no weight should be given to it at all: The State v. Joseph Tapa [1978] PNGLR 134. 

32.	In this case I see three strong reasons why it was incumbent on the learned trial judge to warn himself of the dangers in accepting Kiliaon’s uncorroborated evidence. First, Selman was a former President of the Local-Level Government in his area, thus he was a leader to the people from his area, including the deceased who would have looked up to him with respect. To my mind this was a relevant matter his Honour should have addressed his mind to, especially in light of Selman’s evidence that he said prayers with the deceased on two occasions in the sea, first was after their boat (Sparrow Fly) sank and second was when he volunteered to swim ashore to get help for them after the two young men he asked were reluctant to swim ashore due to their drunken state.  He said one of the young men was crying and the other was the father of one of the young men. To me, this was a matter that should have raised serious doubts in his Honour’s mind whether Selman could commit the alleged crimes. The actions of Selman were more consistent with those of a man with deep religious convictions and belief, and a leader with serious and greater sense of responsibility.  Second, the prosecution did not establish any possible motive for the applicants to kill the deceased. Third, Kiliaon had a strong motive to make false allegations against the applicants, which was the forceful eviction of him and his family by the police from the applicants’ plantation. 

33.	In Abraham Saka v. The State (2003) SC 719, the Court said a failure by a trial judge to warn himself of the inherent dangers in accepting uncorroborated evidence of an accomplice was a fundamental error of law and it would constitute a ground upon which an appeal or an application for review can be allowed or granted. 

34.	In this case, the learned trial judge only warned himself when accepting circumstantial evidence but did not warn himself when accepting the uncorroborated evidence of Kiliaon. 

35. 	In the circumstances, it is not an overstatement that I say with the greatest of respect that the decision of the learned trial judge was seriously flawed with a litany of errors.

36. 	I would for the foregoing reasons quash the convictions entered against the two applicants and substitute them with acquittals. 

37. 	Given the conclusions I have reached, it is not necessary for me to address their respective applications for review against their sentences.  

38.	MOGISH, J: 	I have had the benefit of reading the judgment of Gavara-Nanu J and Hartshorn J, and I respectfully concur with their Honour’s conclusions. I would nonetheless like to add some observations of my own.

Background

39.	This is an appeal against conviction and sentence. The appellant were indicted each with three counts of wilful murder contrary to s. 299 of the CCA, They pleaded not guilty to the charges and a trial was convicted. They were subsequently convicted on 14th November, 2012. On 14th December 2012, they were sentenced to death.

40.	They filed appeals against both conviction and sentences. Their appeals were received by the Supreme Court Registry on the 22nd October, 2012 and registered as SC Review because it had been filed out of the 40 days period as required by the Supreme Court Appeal. The grounds of appeal are very general. They are in the following terms:

“We still maintain we are innocence. We appeal on both 	conviction and sentence.”

41.	Thereafter the Public Solicitor filed a Supplementary Notice of Appeal articulating the grounds of appeal. In essence it was argued the trial judge did not expressly warn himself and record such warning on the dangers inherent in accomplice evidence.  

Competency of Appeal

42.	The law relating to competency of appeals in the Supreme Court is now well settled. The Supreme Court Act regulates the right of appeal and an appellant must exercise the right “within 40 days after conviction” (s 29 (1)) or within such further time as may be extended by the National Court “on application made within 40 days after the date of conviction.” (s 29(2)). The provision clearly computes the limitation period from the “date of conviction”. 
      
43.	In the present case, the appellant was convicted on the 14th November, 2012. That is the relevant date for calculating the limitation period. The appellant did not file an appeal or sought an extension of time “within the 40 days after the date of conviction. Their Notice of Appeal was received by the Supreme Court Registry on 22nd October, 2013, almost 10 months after their conviction and well outside the 40 days period. They have therefore lost their right of appeal under the Supreme Court Act. See Avia Aihi v The State [1981] PNGLR 81. Their appeals are therefore incompetent.

44.	In Avia Ahi v The State (supra) the court held that a person who has lost a right of appeal may seek a judicial review under s. 155(2)(b) of the Constitution. The principles are well established. In Avia Aihi v The State (No. 2) [1982] PNGLR 44, the Supreme Court said that this is a discretionary power and will not be exercised as a matter of course. An applicant must (a) satisfactorily explain why the appeal was not filed within the limitation period and (b) so far as review of conviction is concerned, an applicant must demonstrate that at least there is “grave reason to apprehend that justice has actually miscarried, that is to say, that the conviction  was contrary to the truth and justice of the case”; and so far as sentence is concerned, an applicant must demonstrate that legal grounds exist to show that the sentence imposed was unlawful or excessive.

45.	On the first issue Counsel explained the appellants were not aware of the 40 days period to file their appeal, or failing to comply with the 40 day requirement to seek an extension of time “within the 40 days after the date of conviction”. Counsel argued that since this was a prisoner’s appeal, this Court should treat them differently.

46.	The Respondent did not object to the reasons advanced by the appellants.

47.	The applicant Selman Emos is a qualified teacher and a Church Minister in the United Church. He attended the Goroka Teachers College and Rarongo Theological College where he attained qualification to be a teacher and Minister. He elected to give his evidence in English. Given his extensive experience as teacher, theologian and community, I do not accept his reasons for the delay in filing the appeal when other appellants who appeared before the Supreme Court were able to file their appeal within the 40 days period.

48.	Any person who appeals the decision of the National Court, whether through a lawyer or in person must be aware about the requirement to file a proper appeal within time and articulating the appeal grounds why their convictions or sentences are wrong in law or in fact. This Court cannot continue to accept such excuses and allow these incompetent appeals to proceed to substantive hearing because the appeal is filed by the appellant in person. In my view this should no longer be a relevant consideration, especially in this day and age. The court should not distinguish a prisoners appeal from an appeal filed by a lawyer. Both appeals must be treated equally.

49.	The appellants were represented by Mr. Philip Kaluwin, an experienced lawyer from the Office of the Public Prosecutor. Neither he nor the Public Solicitor took interest in the case when the appellants were sentenced to death. They did not consider exercising their rights to file an appeal within 40 days or seek the court discretion to extent filing of their appeals after the 40 days period. Like the appellants, they remained unmoved even until after the appellants had filed their appeals. 

50.	The late filing of the appeal and the Supplementary Appeal had nothing to do with the primary judge decision on verdict or sentence. His Honour had found the appellants guilty of wilful murder and the responsibility to appeal fell squally on each of the appellants and the Public Solicitor. The issue in the trial was clear. It was not a complex case. The evidence against the appellants rested on the evidence of an accomplice witness and circumstantial evidence. This is not a case where this court should exercise mercy and grant leave to argue the appeal. The reasons advanced by the Public Solicitor for the delay is inexcusable. They were counsel on record and given that the appellants were sentenced to death should have prompted them to act with speed. 

51.	In this appeal, leave was granted to argue the issue of their conviction on the basis that they were both sentenced to death and it was in the interest of justice that they be granted leave.

Accomplice evidence

52.	The conviction against the appellants rested on the evidence of Kiliaon Kamlapar (Kiliaon), an accomplice whose evidence the trial judge accepted in its entirety. The trial judge heavily relied on his evidence and other circumstantial evidence to convict the appellants. In this appeal, it was argued the trial judge did not expressly warn himself nor did he record the warning on the dangers inherent in accomplice evidence.  

53.	The law on accomplice evidence is settled in this jurisdiction. It has its roots in the English Common Law. It is the duty of the judge to warn the jury that it is dangerous to act on the uncontroverted evidence of an accomplice, but that also the jury is entitled to convict on uncorroborated evidence if they see fit. The practice in this jurisdiction is for the trial judge to warn himself of the inherent dangers in entering a conviction upon an uncorroborated evidence of an accomplice. The rationale of this warning is the danger that the accomplice will “minimise his role in the crime and exaggerate that of the accused” or fall to the “temptation to exaggerate or make accusation” to curry favour with the prosecution” The State v Nataemo Wanu [1977] PNGLR 152. If the only evidence is strong, the judge should proceed to conviction. He should not shy away from the fact that it was evidence from an accomplice. This is a rule of practice falling short as a rule of law where the judge is required to record the warning. (The State v Amoko Amoko [1981] PNGLR 373; The State v Francis Natuwohala Laumadava [1994] PNGLR 291.

54.	Reading the transcripts of the judgment, it is apparent to me that His Honour spent a good part of his judgment warning himself of the dangers in accepting circumstantial evidence. Nowhere in the judgment did his honour expressly warned himself about the danger in accepting the uncorroborated evidence of Kiliaon. He ought to have done so to satisfy himself that Kiliaon was a credible witness whose evidence he could rely on. Failure to warn himself and record the warning is fatal to the conviction.

55.	The warning was necessary given the undisputed evidence of “bad blood” between the appellants and Kiliaon regarding Karias Plantation. His Honour’s finding that there was no motive for Kiliaon for to lie was against the weight of the evidence. Kiliaon had a perfect motive to lie and “make accusation” against the appellants to curry favour with the prosecution” The State v Nataemo Wanu (supra).

56.	Then there was the evidence of the key to Sparrow Fly. The prosecution evidence was specifically inconsistent. Kiliaon gave two contradictory evidence about the key. In examination in chief he said he gave the key to Polen Yagari, a policeman, the day after the killing (p. 53 line 31 to 32). In cross examination he said he recanted his original evidence and said he gave the key to Aikos (p. 108 line 1). He was not re-examined on that issue to clarify his evidence. David Keseba evidence is quite different. He said Kiliaon gave him the key to Sparrow Fly (p. 185 line 2). Luke Aikos said he got the key from Kiliaon and then showed it to Chief Sergant Charles Winuan. (p. 482 Line 17).

57.	It is trite law that where there are inconsistencies in the evidence, 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] PNGLR 187. In the present case, the trial judge did not refer to those inconsistent evidence in his verdict, did not assess their significance or insignificance, but choose, without any explanations, to accept the prosecution evidence. 

58.	With respect, His Honour should have rejected the prosecution evidence which were not only inconsistent and contradictory but they cast serious doubts concerning the credibility and reliability of Kiliaon’s evidence about the key. The significance of the key confirmed in his Honours mind that Sparrow Fly never sank. In my respectful view, the trial judge fell into error in arriving at that conclusion.

59.	For those reasons and other reasons stated in the judgments of Gavara- Nanu J and Hartshorn J regarding the contradictory evidence by Kiliaon about the key to Sparrow Fly, the uncontroverted evidence of “bad blood” between the appellants and Kiliaon about Karia plantation and the and the absence of any motive by the appellants to kill the deceased, I would quash the convictions entered against the two appellants and allow their respective appeals against their convictions. It is not necessary for me to address their appeals against sentence.

60.	HARTSHORN J: This is a decision on two applications to review convictions and sentences imposed for the crime of wilful murder.

Background

61.	The two applicants a father and son, were each convicted of three counts of wilful murder after a trial and sentenced to death. It was alleged that they had planned to and did murder three persons. On the night of 31st July 2008 the applicant Selman was overheard talking to a person known as Willie and arranging for the murders. At about 1:00 am the next morning, Willie obtained a gun and gave it to a person known as John Bighead. At about 5:00am a dinghy named Sparrow Fly (Sparrow Fly) left Kokopo for Namatanai with the three deceased persons and the applicant Selman on board.  Sparrow Fly slowed down and allowed another dinghy, Las Ples, to catch up. The skipper of Sparrow Fly was directed at gunpoint to take the dinghy into mangroves. In the mangroves the three deceased persons were shot by John Bighead. The applicant Sialis was present. The bodies of the deceased were pushed into the swamp of the mangroves and were never found.

62.	The applicants’ notices of appeal were both filed over seven months after the period prescribed by statute and so this court considers them as though they are applications for leave to review under s. 155(2)(b) Constitution: Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097; Benjamin Sengi v. The State (2015) SC1425 and Sakai Saraga v. The State (2017) SC1592.

63.	Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (I refer to the cases cited above). These are:

	a)	it is in the interests of justice to grant leave; and
b)	there are cogent and convincing reasons and 	exceptional circumstances, eg. some substantial 	injustice is 	manifest or the case is of special gravity; 	and
			c)	there are clear legal grounds meriting a review of the 				decision.

64.	In this instance, the applications for leave and subsequent amendments to those applications that this court permitted were not resisted by counsel for the State on the basis that the applicants had attempted to appeal but that delays not caused by them had occurred, and secondly as both applicants had been sentenced to death their cases are of special gravity and it was in the interests of justice that they be granted leave.

The convictions

65.	Counsel for the State submitted that the applications for review of the convictions should be dismissed as the primary judge had not fallen into error in his consideration of the cases presented against each applicant. The State’s case consisted of accomplice and circumstantial evidence. It was submitted that the primary judge had correctly stated that the State’s first witness was an accomplice but in addition had found that there was sufficient circumstantial evidence and defence evidence that enabled him to be satisfied of the applicants’ guilt.

66.	The applicants apply to review their convictions on the grounds that in convicting them the primary judge erred in law in allowing and relying upon the tainted uncorroborated evidence of an accomplice.

67.	The applicants submit that the primary judge fell into error in relying upon the evidence of Kiliaon Kamlapar as amongst others, his evidence was not credible. This was demonstrated by him giving evidence that he was present with the group of men when the murder plan was formed, that he informed the relatives of the deceased as to what had occurred and that he was given K1,500.00 for assisting in the murders, but also giving evidence that there was an ongoing issue between his family and that of the applicants in relation to a plantation and that he was afraid that the applicant Misialis Emos may kill him. The applicants submit that it is highly improbable that Kamlapar would have been included in a murder plan by persons who had disputes with him and highly improbable that he would have agreed to be a party to a murder plan with a person whom he believed was likely to kill him.

68.	Also, in his decision the primary judge appeared to have accepted the evidence of State witness John Menring that the sea was unusually rough and windy and that this caused him to stop his son from boarding Sparrow Fly. Consequently it was likely that Sparrow Fly sank as a result of the rough seas and windy weather.

69.	Further, as to the evidence concerning Kamlapar having the key of Sparrow Fly, the evidence clearly indicated that it could not be said definitely that the key tendered into evidence was the actual key of Sparrow Fly.

Accomplice evidence

70.	As to the law relating to the evidence of accomplices, I refer to the two Supreme Court cases of Abraham Saka v. The State (2003) SC719, (Injia DCJ (as he then was), Jalina and Gavara Nanu JJ) and Private Nebare Dege v. The State (2009) SC1308 (Injia CJ, Mogish and David JJ).

71.	In Abraham Saka (supra) the Court said: 

			“It is well settled in this jurisdiction that it is dangerous to 			convict on an uncorroborated evidence of an accomplice.  			Where evidence of an accomplice is involved, the trial judge 			should take heed of such danger and warn himself.  See The 			State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- 			Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – 			Amoko [1981] PNGLR 373. This was reaffirmed not so long 			ago in The State –v- Francis Laumadava [1994]  PNGLR 			291 by Injia J (as he then was) who said at p. 299:

	“I must warn myself as to the dangers of accepting Mr Kilileu’s evidence in these circumstances. There is a likelihood that one accomplice may fabricate or concoct evidence against another accomplice, either to get even or to seek to exonerate himself by casting the entire blame on the other person.  It is an established rule of practice that I must warn myself that it is dangerous to convict unless the accomplice’s evidence is corroborated by other witnesses”.
	We, with respect, endorse His Honour’s views in Laumadava’s case as a correct statement on the law relating to evidence of accomplices.”  

72.	In Private Dege (supra), the Court said at [55]:

	“The law on accomplice evidence is well settled in this jurisdiction. Whilst evidence of one accomplice is not evidence against another accomplice, the Court may nonetheless, after warning itself, accept such evidence if the evidence of one accomplice against another accomplice is corroborated by the accused himself by way of admissions or by evidence of some other witnesses: see The State v. Amoko Amoko [1981] PNGLR 373; Keko Aparo & Others v The State SC 249 (25TH May, 1983); Abraham Saka v The State SC 719.  The State v. Joseph Tapa [1978] PNGLR 134.”

73.	In Private Dege (supra), it appears that the Supreme Court has adopted a more restrictive test by saying that after warning itself, a court may accept accomplice evidence if that evidence is corroborated.

74.	In any event, it is clear that a Court should warn itself of the danger of convicting on the uncorroborated evidence of an accomplice. It is dangerous because of amongst others, the considerations referred to in Francis Laumadava (supra) by Injia J (as he then was). It is also dangerous for the reasons referred to by Kandakasi J in The State v. Ben Noel (2002) N2253. 

75.	In that case His Honour rejected the evidence of a witness who had been charged with the same offence as the accused, but then against whom the State decided not to proceed, in exchange for him giving evidence against the accused. His Honour formed the view that the witness was obliged to testify against the accused in exchange for his freedom. Although His Honour sought to distinguish the witness’s case from that of an accomplice where a caution is required before the evidence is accepted, in my view, the point raised, that an accomplice may give evidence against another in exchange for his freedom, and therefore his evidence may very well be tainted because of a desire to ensure his freedom or not to be charged, is a particular danger of which a court should be aware before accepting uncorroborated accomplice evidence.

Consideration 

76.	As stated, in this instance, the State submits that the primary judge properly addressed the issue of accomplice evidence at p329 of the transcript. However, from a perusal of the transcript and the written decision of the primary judge: The State v. Selmon Emos (No. 2) (2012) N5072 at [83], the primary judge stated, “…. it is unsafe to convict…. upon uncorroborated evidence of one witness alone unless such evidence is corroborated….” The primary judge did not warn himself that it is dangerous to accept the uncorroborated evidence of an accomplice. This is notwithstanding that at [87] the primary judge acknowledged that the main witness of the State was an accomplice.

77.	From a perusal of the transcript of the evidence of Kiliaon Kamlapar, to my mind it is highly improbable that he would agree to be part of a plan to commit murder with a person he believes may kill him and it is also highly improbable that such a person would want Kamlapar to be part of such a plan. I agree with the submissions of the applicants in this regard. Further, that there is an admitted dispute between Kamlapar and his family with the applicants, again to the extent that Kamlapar believes that one of the applicants may kill him, leads to a conclusion that it cannot be discounted that there is a likelihood that the evidence of Kamlapar against the applicants is either fabricated or concocted to amongst others, get even with the applicants. Given this and that the primary judge did not warn himself that it is dangerous to accept the uncorroborated evidence of an accomplice, I am of the view that for the primary judge to have accepted the uncorroborated evidence of the accomplice in the circumstances referred to above, was an incorrect exercise of his discretion.

78.	I also make mention of the primary judge’s reliance upon the evidence concerning the key to Sparrow Fly. From a perusal of the transcript, notwithstanding that Kamlapar gave evidence that he had the key from Sparrow Fly and David Keseba, the owner of Sparrow Fly and the brother of the Neson Koli, one of the deceased, identified the key as being the key for Sparrow Fly because of the number 408, Keseba also to my mind significantly, gave evidence that the key could be used in another boat. Moreover, it was acknowledged in the transcript by the primary judge that such a key was unsafe. Further, there was no evidence to the effect that a boat engine similar to that of Sparrow Fly could only be started with a specific key, and no evidence that if the engine could only be started with the key numbered 408 that was tendered into evidence, that this was the only such key numbered 408 that could start the engine. There could be numerous such identical keys in existence. There is in my view a reasonable possibility therefore that the key used to start the Sparrow Fly on the fateful day is not the key that was tendered into evidence.
79.	I am satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict of guilty made against the applicants for the reasons given: John Beng v. The State [1977] PNGLR 115. I am also fortified in my view that the trial judge erred in finding that the case against the applicants had been proved beyond a reasonable doubt by the submission of the State that there may be insufficient evidence against the applicant  Misialis Emos. 

80.	Given this, it is not necessary to consider the other submissions of counsel. 

81.	As the evidence is incapable of proving the guilt of the applicants beyond reasonable doubt, a verdict of acquittal must be substituted.

Orders

82.	Given the above, I would make the following orders: 

		a)	The reviews against conviction of Selman Emos and Misialis 			Emos are upheld;

		b)	The convictions and sentences imposed upon Selman Emos 			and Misialis Emos are set aside and verdicts of acquittal are 			substituted.

83.	KANGWIA J: 	I have had the opportunity of reading the judgments of Gavara Nanu J and Hartshorn J and agree with their Honours’ reasoning and conclusions.

84.	I would uphold the applications for review against conviction, set aside the convictions and sentences, and substitute the convictions with verdicts of acquittal.

85.		PITPIT J:  I have had the benefit of reading the draft judgments of Justices Gavara-Nanu and Hartshorn, and I have decided to fully accept and concur with their Honours’ views, findings and conclusion and have nothing further to add.
                                 
 ____________________________________________________
The Public Solicitor:     Lawyers for the Applicants 
The Public Prosecutor:  Lawyers for the Respondent