SC1732

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 15 OF 2016

BETWEEN:
MONDE MANUEL
Appellant

AND
THE STATE
Respondent

Kokopo: Batari, J Frank, J
2016: 14th December
2018:  8th November

CRIMINAL LAW – Appeal - Wilful murder – Conviction – child victim died two days after alleged attack – evidence – death allegedly caused by sorcery – circumstantial evidence – principal witness as an accomplice under coercion and duress - inconsistencies of evidence - reliability of - element of intent – strict proof of – safeness and satisfactoriness of verdict - Whether sufficient evidence to sustain lawful conviction – Conviction against weight of evidence renders conviction unsafe and unsatisfactory.
 
CONSTITUTION - appeal – right of appeal – appellant – entitlement of to be accorded the right of appeal against conviction and sentence – Constitution s. 37 (15); Supreme Court Act ss. 4, 22, 23, applied.  

Facts: 

The Appellant was convicted of wilful murder and sentenced to 50 years imprisonment. The trial judge found the Appellant attacked a three-year-old child by twisting and breaking his neck. The child died two days later.  

Held: (upholding the appeal) that:

1.	A ground of appeal may be dismissed at the outset for failing to set out with sufficient particularity and clarity the issues of law or mixed facts and law for determination. [para.3]  

2.	In an appeal against conviction, the court should be slow to dismiss a ground of appeal unless it is too general and gives no hint to a wrongful conviction because of the constitutional right to appeal. [para 5, 6]

3.	On a wilful murder charge, the essence of a willed act is the state of the mind of the accused person at the time of the act which can be proven by direct evidence of the expressed intention followed by the act itself or by circumstantial evidence: The State v John Kuvis (2012) N4768. [para 26]

4.	Where a principal witness for the State may reasonably be suspected as an accomplice, it is conceivable such a witness might reasonably be supposed to have been concerned in the events giving rise to the charges. So, the trial judge ought to warn him or herself of the fragility of such evidence as to its reliability. [para 33, 34]

5.	Where the State case rests on the testimony of a witness whose evidence is found to be unreliable, the quality of his/her evidence will unlikely improve unless supported by other independent evidence or incontestable admissions by the accused. [para 45]

6.	It is good practice for the trial judge to explain the three options open to the accused person at the end of the prosecution case and let the accused person make a personal election to remain silent, make a statement from the dock or give sworn evidence. The failure to do so may result in substantial miscarriage of justice: Section 572 Criminal Code Act. [para 54, 55, 56, 57]
 
7.	The appeal is upheld; a verdict of not guilty is directed to be entered; the conviction is quashed, the sentence is set aside, and judgment of acquittal entered.

Cited Cases: 

Glen Otto Kapahi v The State (2010) SC1023 
John Beng v. The State [1977] PNGLR 115
Kokora v. The State [1988-1989] PNGLR 131
Kwame Okyere Boateng v The State [1990] PNGLR 342 
Manu Kovi v The State [2005] PGSC 34; SC789
Murray v. The State (2001) SC 668
Nebare Dege v The State (2009) SC1308
Ombusu v The State [1996] PNGLR 335
Paulus Pawa v The State [1981] PNGLR 498; 
Paulus Pawa v. The State [1981] PNGLR 498
The State v Fineko [1978] PNGLR 262.
The State v John Kuvis (2012) N4768
The State v Mole Manipe & Ors (1979) N196
The State v Paul Dimon Asilip [2011] N4197
The State v Tom Morris [1981] PNGLR 493;
The State v Wanu [1977] PNGLR 152; 

Counsel: 

L. Mamu, for the Appellant 
P. Kaluwin, for the Respondent

8 November, 2018

1.	BY THE COURT:  On 22nd June, 2016 the National Court sitting at Kokopo convicted the Appellant of wilful murder and sentenced him 50 years imprisonment. The Appellant appeals against both his conviction and sentence. This judgment is handed down by the remaining members of the Bench (Batari, Ipang & Frank, JJ) with consent of the parties under s 3 of the Supreme Court Act, the third member having passed on.   

GROUNDS OF APPEAL

2.	The Notice of Appeal contains broadly based ground as follows; 

“Appeal against both conviction and sentence. The deceased died 3 days after at the hospital. The sentence is a bit too harsh”.

3.	The brevity of this appeal ground is classic example of prisoner in-person appeals. It may be dismissed at the outset for want of detail, clarity and substance. Grounds of appeal must be set out in precise terms with sufficient particulars and clarity to inform the other party, what issues they will prepare to defend at the hearing of the appeal and to clearly inform the Court, the issues of law or mixed law and facts before it for determination.

4.	The Appellant may not fully comprehend the full implications of his conviction. The appeal ground in effect, raises the critical issue of causation. This important question of law is apparent on the face of the records which indicates serious evidentiary flaws that ought to be determined on appeal.  In the interest of justice and for the reasons following, we granted the appellant leave to be heard. 

Right of Prisoner to appeal against conviction 

5.	The Constitution vests in a convicted person, the right of appeal against conviction or sentence.  Section 37 envisages full protection of the law. Sub-section (15) provides, that every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law. Sub-section (16) provides that no person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

6.	  Sections 4, 22 and 23 of the Supreme Court Act provide the process for giving effect to those constitutional rights. Under s. 4 (1)) an aggrieved person may appeal to the Supreme Court from either a judgment of the National Court or from an appeal to the National Court on a question of law, question of mixed fact and law, or with leave of the Supreme Court on question of facts. Section 23, gives the Supreme Court power to set aside a verdict or conviction on appeal, where the verdict is unsafe or unsatisfactory by reason of an error of law or a material irregularity in the trial.
 
7.	It is trite that the appeal will be only allowed if the verdict is shown to be unsafe or unsatisfactory. In Nebare Dege v The State (2009) SC1308 the Supreme Court stated;

“In respect of s. 23 (1)(a), in State v John Beng [1977] PNGLR 115, the Supreme Court held that on an appeal against conviction pursuant to s. 22 (1) (a) of the Supreme Court Act 1975, (now s 23 (1)(a)), the Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed. This principle establishes that a court of appeal in Papua New Guinea does not allow appeals because it has a mere "lurking doubt", words used elsewhere by other appeal courts. The evidence or conduct of the trial must raise a reasonable doubt as to the safeness or satisfactoriness of the verdict before an appeal is allowed.”

8.	We are satisfied, the appellant is entitled to be accorded the right of appeal against his conviction and sentence.  

Background.

9.	The National Court convicted and sentenced the Appellant following a trial on a wilful murder charge pursuant to s. 229 of the Criminal Code. The prosecution alleged that around midday of 13/5/2014, the Appellant and his companion, Tande Papangai came across three-year-old Noel Maras collecting fruits under a Malayan (laulau) tree while his sister Raina was up in the tree. The Appellant asked Noel for laulau fruits and then attacked the child by twisting its neck. After he dumped Noel on the ground, he revived him again and warned Tande not to tell anyone. Noel survived the attacked but died two days later.

Parties’ Positions 

10.	At the start of hearing, the Court granted Mr Lesley Mamu of the Public Solicitor’s Office leave to represent the Appellant.  Mr Mamu submitted, the circumstantial evidence does not lead to one reasonable conclusion that the Appellant killed the child. Too, the inconsistencies in the State’s case and the inconclusive medical findings on the cause of death did not support a lawful conviction. Counsel also raised the lack of corroborative evidence. On sentence, Mr Mamu submitted, 50 years is excessive and disproportionate to the less serious nature of the killing under the guide in, Manu Kovi v. The State (2005) SC789. 
 
11.	Public Prosecutor, Mr. Pondros Kaluwin submitted, the conviction is safe and supported by untainted evidence of an eye witness and corroborated by medical evidence. State’s principal witness, Tande Papangai was present at all material times and saw the Appellant attacking the child. The medical evidence confirmed misalignment of the neck bone, consistent with what the Appellant did. So, the trial judge lawfully convicted the appellant on wilful murder. On sentence, the trial judge did not make any identifiable error. His Honour took into account all mitigating and aggravating factors to impose a term of years consistent with the sentencing precedence for similar type killings. 

The Appeal against Conviction: Principles on Circumstantial Evidence  

12.	The evidence against the appellant is largely circumstantial. The law on circumstantial evidence is settled. When the case against the accused rests substantially upon circumstantial evidence, the accused should be acquitted unless all the circumstances and their independence one of another, each evidence standing alone or pieced together have such cumulative effect as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: The State v. Tom Morris [1981] PNGLR493; Kokora v. The State [1988-1989] PNGLR 131, Paulus Pawa v. The State [1981] PNGLR 498; Murray v. The State (2001) SC 668.

13.	In The State v Paul Dimon Asilip [2011] N4197 Cannings, J restated the test to apply as follows:

•	“the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt;
•		to enter a guilty verdict, it is necessary not only that guilt is a rational inference but that it is the only rational inference that the circumstances would enable the court to draw;
•	the question to ask is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, he is guilty. If no, he is entitled to an acquittal (Paulus Pawa v The State [1981] PNGLR 498, Devlyn David v The State (2006) SC881 applied).”

14.	The trial judge averted to those principles and concluded, the accused was present at the crime scene; the medical evidence showed the victim’s neck bone had a misalignment caused by external force applied to the neck; Tande Papangai being the accused’s brother had no reason to tell lies against him. All the evidence put together led only to one conclusion, the accused intentionally killed the child victim.

15.	With respect, the whole of the evidence showed inconsistencies and deficient facts which together, have such cumulative effect as to make the verdict unsafe or unsatisfactory. The primary judge’s findings and conclusions are unsubstantiated by the cumulative effect of the proven facts. The nature, variety, cogency and independence of one of another of all the proven facts in the proceedings in the court below, are so incontestably insufficient they do not lead to one reasonable conclusion that the appellant killed the deceased as we will demonstrate, following.
 
Sufficiency of evidence and Satisfactoriness of the verdict

16.	First, the common facts are these. The Appellant twisted and injured Noel’s neck. He dumped the dead child onto the ground but then did some magic spell to bring Noel back to life. Noel returned home with his sister, then followed after his parents to the beach around 3.00 pm. In the evening, he felt unwell from a sore neck and vomited. His parents admitted him into an aid post for treatment. He died after two days.    

17.	It is apparent from the outset, Noel’s demise was shrouded in suspicions and beliefs. Talks of black mark around the child’s neck, loose movement of the neck and sightings of the Appellant near the family home ignited rumours, Noel died from a sorcery killing. Tande Papangai was said to be frequently seen with the Appellant around the laulau tree.  So, relatives of the child forced a confession out of him. That led to the Appellant being charged and convicted of wilful murder.  We will return to the witness’s evidence on this aspect in the latter part of this judgment. 

18.	As death was allegedly caused by sorcery, we take cognition of the common belief, generally regarded as “sanguma” - a type of sorcery belief where the alleged sorcerer would supposedly kill a person, usually in an isolated location and bring the victim back to life. The victim would die immediately or dies shortly after the attack. This case has traits of that belief in the evidence before the primary court.   

19.	In a criminal trial, a court of law cannot convict on mere suspicions and beliefs. With respect, his Honour misconstrued the evidence when he failed to discern and separate facts from suspicions and illusory beliefs. The inferences drawn from references to sorcery had no doubt played on the mind of the primary judge. That caused his Honour to fall into error.  The verdict is clearly unsafe and unsatisfactory.
 
20.	The second reason the verdict is unsafe and unsatisfactory is the doubtful cause of death. The trial judge accepted the evidence of the State witness as being consistent with medical findings of misalignment of the victim’s neck bone and concluded the accused’s guilt was the only rational inference the court could draw from the circumstantial evidence.  His Honour stated at p. 110 of the Appeal Book;

“The State’s evidence establishes beyond reasonable doubt that the accused was at the scene of the crime. The doctor’s conclusion was that the victim’s neck had a mal alignment. He was asked during the trial what he meant by that term, the doctor said prior to the victim dying, and external force could have been applied on the victim’s neck region and that this was consistent with the history of the case of the victim.”   

21.	With respect, the trial judge’s findings are at odds with the oral testimony of Dr Lisioth Wauleau. Dr Wauleau exhumed the body and did a post mortem some two months after burial. External examination revealed;

a)	The body was already deteriorating with the bone structures compromised by due process of soft tissues decay;
b)	No injuries were found on the bone structure of the neck;
c)	Mal alignment of the neck bone may due to other causes;
d)	 The cause of death was not due exclusively to the neck injury. 

22.	The doctor conceded under cross-examination, dislocation of the neck-bone may be due to decomposition rather than by neck injury (pp. 58 to 59, Appeal Book). He also conceded, the mal alignment may be due to the child’s head being propped up with a pillow and the decomposition state. His critical evidence was as follows;

“Q: Now, given that there was already deterioration …, given that it was a young child and given that the body was laying with its head on a pillow, in your opinion, ….. the bone as it is would have been dislodged as a cause of the deterioration of the body rather than by what is alleged in this case? Would you agree with me?
A: Yes, in regard to that----

Q: Is it possible? 
A:  That is possible

Q: I note from your findings that there were no significant findings ….. , on the injuries on the bone itself, rather it was only about … how the bone was displaced. Would that be correct? 
A: Yes

Q:	And … that could possibly come up because of the process of decomposition rather than by any other external forces. Would you agree with me on that? 
A:  As I have said, depending on the age of the child. 

Q: But given that the child is not fully developed,… would it be possible that the bone was displaced as a process of decomposition rather than by external force? …. You only said there were some dislodgements. … I am saying maybe it came out as a process of decomposition rather than external force. Would you agree …? 
A: Yes.

23.	Dr Wauleau also testified that it would be impracticable for a child to simply get up and walk away from a neck injury.  The doctor explained, depending on the force used and the damage caused, the victim may choke, vomit and lapse into unconsciousness or even die (pp53, 54, 55, Appeal Book). The principal witness testified, the Appellant broke Noel’s neck and he died. He then revived him and Noel returned home. There was no evidence of immediate chocking, vomiting or unconsciousness.  Death occurred two days later after some vomiting and failed medical intervention.

24.	With respect, his Honour did not address the conflicting evidence of the principal witness and the medical evidence. The primary judge had without plausible explanation, disregarded the totality of crucial medical findings against the State’s case. He ignored the grave doubts the medical evidence had posed on the cause of death.  

25.	Without proof of the cause of death being established, the critical element of a homicide charge is missing.  Cause of death must be proven by some physical evidence, not by speculations and conjectures.  So, with the grave doubts posed by the medical evidence on the cause of death, the conviction is unsafe and unsatisfactory. 

Element of offence: Whether there was intent

26.	Lack of proof of intent is the third reason the verdict is unsafe. The primary judge did not directly address this essential element of the offence under the strict proof principle. There is also absence of proof of motive to support or infer intent. 

27.	In a wilful murder charge, a person’s reason or motive for the commission of the offence and how that motive is carried out or translated into action would usually go to support the issue of intent.  However, absence of motive will not necessarily affect the issue of intention.  A willed act can result from apparent or hidden motive.  The essence of intent is the state of the mind of the accused at the time of the act.  This may be proved by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either case, the course of conduct of the accused person before, during and after the act which constituted the offence is relevant:  The State v John Kuvis (2012) N4768.
 
28.	In this case, the description of the killing as, “senseless, cold blooded, barbaric and brutal” suggested an intentional killing. With respect, this is a blatant wayward assertion, empty of tangible evidence. The primary judge misconstrued the requirement to establish the element of intent. There is no evidence, direct or inferred from the proven facts on this essential element. The medical findings on cause of death and time of death also fell short of supporting the charge of wilful murder. And no evidence was led on the important associated issue of motive. What's more, the principal witness said the Appellant was armed with a bush-knife. It is hence, open to inference, the Appellant could have easily attacked the deceased with the bush-knife if he had the necessary intention to kill.  He didn’t. 

29.	With respect, the trial judge failed to rationalise the findings that the appellant had the necessary intent to kill Noel. The highest the prosecution had left its case was, that the child initially died after the appellant twisted and broke its neck. Then the Appellant woke the child up from the dead. Two days later, the child died the second time! 

30.	No reasonable tribunal of fact would have convicted on wilful murder upon such flimsy evidence. It is plain, the conviction was based on an irrational superstitious belief. The evidence failed to establish the most crucial element of the offence which required strict proof under s. 229 of the Criminal Code. This makes the conviction on wilful murder, unlawful.

Evidence of principal witness.

31.	Reliability of witness is the fourth reason the conviction is unsafe. The primary judge relied heavily on the evidence of Tande Papangai that;
 
a)	he (witness) was present at the scene with the appellant; 
b)	the appellant killed Noel by twisting his head and neck;
c)	his (witness) evidence is supported by medical evidence.  
d)	he (witness) would not tell lies against his own brother;
e)	the witness’s evidence is consistent with appellant confession.

32.	Those findings have little support from the whole of the evidence, that Tande Papangai was a witness of truth. It is apparent the primary court accepted the witness’s story on face value without due caution and proper assessment of the witness’s reliability and the quality of his evidence. 

33.	Witness reliability is a vital aspect the evidentiary burden in a criminal trial where the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. Dependability of a testifying witness and the quality of his or her evidence will depend on a number of factors and the circumstances in which the witness finds himself or herself as a witness.  In this case, accepting that the principal witness was with the Appellant, he may well be an accomplice to the killing.  So, his evidence must be assessed with apposite caution.
 
34.	It is settled, that where a principal witness for the State may reasonably be suspected as an accomplice to the killing or at least to have been criminally concerned in the event, it is conceivable such a witness might reasonably be supposed to have been concerned in the events giving rise to the charges.  So, the trial judge in dealing with such witness ought to warn him or herself of the fragility of such evidence as to its reliability. Possible scenarios as suggested in, The State v Wanu [1977] PNGLR 152; The State v Fineko [1978] PNGLR 262 are: 

•	the witness may justify his or her own conduct by shifting the blame from himself or herself to others by playing down his or her part in the crime with makeup stories; 
•	the witness may invent false stories out of malice, hatred, or revenge; 
•	the witness may be motived by reward, favour or in hope to escape punishment or for a reduced punishment by giving false evidence: 
 
35.	We will add as an extension to the last consideration, that the witness may make up false stories to escape payback, beatings and torture or in hope of self-preservation in sorcery related allegations implicating him or her.        

36.	Whatever, the motive for giving false evidence might be, the inconsistencies that are likely to build up in the witness’s story will render his or her evidence untrustworthy: The State v Wanu; The State v Fineko (supra).

37.	 Similarly, it is not always easy to detect a lying witness in their testimony in court in their conduct or demeanour.  A lying or untruthful witness can be very confident and convincing. While discussing ways of dealing with lying witnesses, Wilson J suggested in The State v Mole Manipe & Ors (1979) N196;   

“..in addition to the methods described in these cases for assessing whether a witness may be lying or not, one may usefully examine (as Mr. Roddenby urged me to do in this case regarding the witness, Jim Sam):
(a)     whether the story told by the witness is inherently probable or not;
(b)     how it fits in with the prosecution case;
(c)     how it fits in with the defence case; and
(d)     how it fits in with the evidence as a whole.”

38.	In this case, the principal witness gave tainted testimony from the start. He was a reluctant witness. His story was forced out of him by relatives of the deceased as recorded at page 82 of the Appeal Book; 

“ Q: And then they belted you so badly, you admitted to them. You told them to save yourself, you told them that Monde Manuel did this; squeezed the little boy’s neck, is that right? 
“A: Yes your Honour” 

39.	And at pages 83 to 84 the following is recorded: 

“Q: So, to save you from further pain, you came up with this story?
A: Your Honour, because they continued to assault me, I had to tell.
Q: You were afraid for your life, were you not? 
A: yes your Honour.
Q: The same people who had belted you up took you to the police station, is that right?
A: yes your Honour.
Q: And then when you were giving your statement to the police, they were in the same room as you?
A: Yes your Honour, we were together but we did not sit together.”

40.	With respect, the primary judge did not address and hence failed to consider the reliability of Tande Papangai testifying under duress. Relatives of the deceased had forced him into submission by beatings and threats of violence. The intimidation continued to the police station. It is open to inference, the witness tailored his story to save himself from further bodily harm, pain, sufferings and threats.
 
41.	Too, the pressure to confess came from his association with an alleged sorcerer (pp. 85 to 95, Appeal Book). His association with the Appellant and their movements were allegedly sorcery related and connected to Noel’s death. The talk of sorcery led to the witness being beaten and threatened into submission. It is an unfortunate common trend in this country, that alleged sorcerers and their associates are often attacked and sometimes killed.  So, it is comprehensible, for an alleged associate to shift the blame or make up a story to save him from further trauma and to redeem his reputation from being further tarnished by the sorcery accusations.  

42.	It is hypothetically open in the circumstances of the suspicions, intimidation and compulsion, Tande Papangai shifted the sorcery blame to the appellant to preserve his own reputation and to escape further threats and physical harm.

43.	The primary judge also considered that the witness cannot tell lies against his own brother. With respect, that reasoning is unsupported on the evidence. It is not crucial against the Appellant. A witness may be forced to tell lies against a relative as in the circumstances of the witness in this case. Nonetheless, the evidence is that the two are not siblings. So, the weight of being truthful against a blood relative lapses into flimsiness.

44.	The undependability of Tande Papangai is apparent from the inherent inconsistencies and the absurdity of crucial parts of his evidence.  His story of the sorcery killing is so bizarre; it defied common sense and logic. It is most unthinkable, someone who had just had his neck-bone separated and died as a result, can simply be brought back to life to die the second time later. The evidence is so irrational and highly incredulous, no reasonable tribunal of fact can safely convict on it.

45.	Where the State case rests on the testimony of a witness whose evidence is half-truths, evasive, or tainted by external forces or is coerced, or driven by motive to tell lies, the reliability of the witness is affected and the quality of his evidence will unlikely improve unless supported by other independent evidence or from clear admissions by the accused. We consider it incumbent and crucial for the witness’s evidence to be corroborated by other independent source because, the story standing alone, will carry little or no weight, more particularly so, where the evidence has inherent inconsistencies as in this case.

Missing link in evidence

46.	A critical gap in the State’s case is the absence of evidence from Raina, elder sister of Noel Maras. Raina was present at the scene. She would have had the advantage of observing the events at the bottom of the laulau tree. She would have been the first contact for Noel and would speak for and on behalf of her little ‘injured’ brother.  Prosecution did not call Raina to corroborate Papangai’s evidence. Furthermore, there was absence of recent complaint by Noel or his sister to verify Papangai’s evidence. Too, Noel Maras complained of headache to his mother the same evening but, mentioned nothing about the laulau tree incident.

47.	In the end result, the absence of such missing links in the evidence left a crucial gaping hole in the prosecution case.  

Purported confession

48.	The trial judge also relied heavily on the appellant’s “confession” (pp. 112, 109, Appeal Book). With respect, his Honour failed to address the conflicting answers in the record of interview where the appellant gave both positive and negative answers. His Honour accepted the affirmative answers and disregarded the denials without reconciling the conflicting admissions with the whole of the evidence. It is trite, that the accused person need not prove his innocence. His one admission in a record of interview amongst his denials cannot cure the deficiencies in the prosecution case. The onus remains with the State to prove the guilt of the accused beyond reasonable doubt.   
 
Other inherent inconsistencies in the prosecution case

49.	There are other inconsistencies in the State’s case. For instance, on pages 68, 72, 75 and 77 of the Appeal Book, Tande Papangai gave different versions of how he witnessed the attack. He spoke of hearing noises from the child and seeing the Appellant tossing the dead child onto the ground. In another version, he spoke of seeing the actual attack. The witness also said the incident happened on a Friday. He changed that to Tuesday in cross-examination. And he denied being related to Noel.  In cross-examination, he conceded being related both to the child and the Appellant.      

50.	Besides, the witness gave the impression, the child had left the scene at the time the Appellant threatened him. He testified that the Appellant ran to him after reviving the child and threatened him with a bush knife. In another version, the Appellant walked to him. Either way, Noel would have immediately left the scene with his elder sister. If Noel was indeed seriously incapacitated with a neck injury and died as a result, it is inherently improbable he would simply recover and walk away.  That would defy science and logic.  

51.	The trial judge did not address the inconsistencies in the whole of the prosecution evidence.  It is trite, where inconsistencies exist in the evidence of the witness, the trial judge should draw his or her attention to those discrepancies and give reasons for preferring one over the other. The Supreme Court made this clear in the case of Glen Otto Kapahi v. The State (2002) SC1023 where the court held;

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

52.	The conflicts and anomalies we have highlighted in the prosecution evidence had remained unreconciled at the end of all the evidence. They are in our view, crucial against the weight of the prosecution evidence.

Procedural Irregularity

53.	We also found a procedural irregularity in the course of the trial. After the primary court rejected the defence’s ‘no case submission’, defence counsel informed the court, the accused would not give evidence and closed the defence case (p.95 Appeal Book).  Section 572 of the Criminal Code imposes on the judge or Court the duty to put to the accused person, the options available in responding to the prosecution evidence. Section 572 provides;

“572 Evidence of defence

(1) At the close of the evidence for the prosecution, the proper officer of the court shall ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the court.
 
(2) Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.
 
(3) When the accused makes a statement to the court he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence”. 

54.	The duty imposed on the court to ask the accused whether he or she intends to give evidence or make a statement is mandatory. The accused person must be put in a position to fully understand his right so as to make an informed election on how to respond to the evidence against him or her, in defence. If he or she is unable to make a personal election, Counsel may do so upon instructions.  This is the essence of a fair trial and the full protection of the law under s. 37 (1), (4) of the Constitution. 
 
55.	It is good practice for the trial judge to explain the three options open to the accused person to remain silent, make a statement from the dock or give sworn evidence and let the accused make a personal election. Failure to do so may result in substantial miscarriage of justice. See, State v. John Kuvis (supra).

56.	 In the present case, the primary court did not invite the accused to personally make the election to adduce or not to adduce evidence in his defence. This irregularity may amount to substantial miscarriage of justice. The appellant was denied the right to be informed of his options to make an informed election. This procedural irregularity is subsumed into our findings on unsafe and satisfactoriness of the verdict.

Sentence Appeal

57.	The trial judge in sentencing the appellant remarked; 

“36 The Court would describe what you did to the deceased as “senseless” cold-blooded, barbaric and brutal. You revealed what you did in the record of interview where you admitted to killing the little boy by twisting his head and neck. What did that little victim do to you? Your actions deserve the maximum or near maximum penalty to be imposed. The prisoner is sentenced to 50 years imprisonment.”

58.	With respect, there is nothing in the circumstances of this case to put it into the worst case scenario as, “senseless” cold-blooded, barbaric and brutal.” There is absolutely no basis for that view. It follows that the trial judge erred in overemphasising the degree of seriousness of the “killing”. That is an identifiable error warranting a review of the sentence by this Court. There is a further identifiable error in that the sentence imposed is manifestly excessive and disproportionate in all the circumstances of the case: See, Manu Kovi v The State [2005] PGSC 34; SC789.

59.	In view of our findings on the question of conviction, it is not necessary to decide the issue of appropriate sentence.

Conclusion 

60.     The inherent inconsistencies in the prosecution evidence and inferences open on the proven facts pointing to other reasonable hypothesis than the guilt of the accused is apparent on the face of the records.  The appeal should be allowed on the basis that the verdict is unsafe and unsatisfactory and there is a reasonable doubt, not merely a lurking doubt, about the guilty verdict: John Beng v. The State [1977] PNGLR 115. We also consider that a miscarriage of justice has occurred through a procedural irregularity.
  
60.	In our view, the unlawful conviction cannot be remedied by an order for alternative verdict or a new trial. The state of the prosecution case does not justify either of those two options. The unsafe and unsatisfactory nature of the whole of the evidence is more than mere procedural irregularity resulting in substantial miscarriage of justice: See, Kwame Okyere Boateng v The State [1990] PNGLR 342; or Ombusu v The State [1996] PNGLR 335.  Furthermore, the appellant has served two years of the term imposed by the National Court.

61.	In our view, the interests of justice weighs against orders for re-trial. We propose to uphold the appeal; direct a verdict of not guilty to be entered; quash the conviction, set aside the sentence, and enter a judgment of acquittal.

ORDERS
 
1)	The appeal is upheld;
2)	A verdict of not guilty is entered;
3)	The conviction for wilful murder is quashed;
4)	The sentence is set aside;
5)	The judgment of acquittal is entered;
6)	The appellant be discharged forthwith from further detention. 
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Public Solicitor:  	Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent