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Kanukanu v State [2020] PGSC 2; SC1913 (6 February 2020)

SC1913

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 28 OF 2013

BETWEEN:
KOROKORO KANUKANU & PIMUL KOMEAO
Appellants

AND:
THE STATE
Respondent

Waigani: Salika CJ & Toliken & Polume-Kiele JJ
Mt Hagen: 2017: 30^th August
Waigani 2020: 6^th February

SUPREME COURT – Practice and Procedure – Appeal against Conviction – Principles applicable – Constitution S37(15) – Supreme Court Acts 22 – Supreme Court Rules Order 7 Rules 8, 9 and 10.
Inconsistency between eye-witness evidence and medical report – Whether or not inconsistencies existed – Duty of trial to identify inconsistencies, assess them and give reasons for holding such inconsistencies as significant or insignificant – Failure thereof renders conviction unsafe and unsatisfactory.

MISCARRIAGE OF JUSTICE - Discretion of Supreme Court to dismiss appeal notwithstanding unsafeness and un-satisfactoriness of conviction – No miscarriage of justice – Appeal dismissed – Conviction confirmed.

Cases Cited:
Wili Kili Goiya (1991) PNGLR 170.
John Beng v The State (1977) PNGLR 115
Jimmy Onopia v The State (2002) SC 698
Vali Rocky Mauri v The State (2001) SC 668
Richard Liri v The State (2007) SC 883
Kapahi v. The State 2 [2010] PNGLR 301
James Pari v The State [1993] PNGLR 173
John Beng v The State [1977] PNGLR 115
Brian John Lewis v The State[1980] PNGLR 219
Havila Kavo v The State (2015) SC1450

David v The State (2006) SC881

Counsel:
Mr. L. Mamu, for the Applicant
Mr. J. Kesan, for the Respondent

6^th February 2020

1. SALIKA, CJ: INTRODUCTION: The appellants were convicted by the National Court in Goroka on 21 October 2013, on a charge of murder of one Paul Siove. The charge was laid under S300(1)(a) of the Criminal Code Act. They were convicted after a trial and sentenced to 18 years imprisonment (Korokoro) and 17 years imprisonment (Pimul) respectively.

FACTS:

2. The facts as found by the learned trial judge were that on 30 July 2012, Paul Siove in company with three others from his village were at the Goroka main market bus stop waiting for a bus to take them to their village Akameku. While waiting men from Kabiufa village including the 2 appellants started assaulting people from Akameku village. A commotion arose at the market area. During the commotion Korokoro Kanukanu confronted Paul Siove, threw a few punches at him. At the same time, Pimul Komeao came by and said, “kill them”. On his urging more people converged on Paul Siove and kicked and punched him. Paul Siove was eventually lifted up and thrown head first into a deep drain resulting in Paul Siove sustaining a broken neck. Paul Siove was taken to the Goroka Hospital but died.

3. The appeal is without leave and is not required.

GROUNDS:

4. The following are the appellants grounds of appeal:

“1. His Honour erred in law and in fact in believing and placing too much weight on the State’s witnesses and finding their inconsistencies as minor when there were major inconsistencies in their evidence with regard to the assaults received by the deceased and the circumstances in which identification was made that is ignoring the evidence as to the issue of a White Land Cruiser which surfaces at the cross examination.

2. His Honour erred in fact and in law in finding that the Appellants murdered the late Paul Siove by assaulting him when the State’s witnesses evidence regarding assault is inconsistent with the medical report.
   
3. His Honour erred in law and in fact in finding that the Appellants and others murdered the late Paul Siove by assaulting the deceased and throwing him into the drain when the State’s witness’ evidence regarding the assault is inconsistent with the medical report.”
   

5. The appeal is against conviction only.

ISSUES:

6. The contentions raised by the appellants is that there were inconsistencies in Nancy Koke’s evidence and the medical report which the learned trial judge labelled as minor were not so minor and that the inconsistencies were major inconsistencies which no reasonable tribunal could brush aside or rely on to convict.

7. The appellants contended further that the oral testimonies of the witnesses were not supported by medical evidence, which in turn rendered it unsafe to convict them.

8. The issues the appellants raise are:

(a) Whether Nancy Koke’s evidence is inconsistent with the medical report?
(b) Whether Nancy Koke’s evidence is inconsistent with the evidence of Pilisive Sio and Mark Gahare?

DEALING WITH THE ISSUES:

9. The learned trial judge said:

“To the contrary I find them credible witnesses despite minor inconsistencies which in my view are insignificant and otherwise are normally expected in any case. These inconsistencies do not affect the overall weight of the prosecution evidence. ...”

10. The learned trial judge accepted and preferred the evidence of the State witnesses to that of the appellants and their witnesses. The evidence of Nancy Koke with respect is not inconsistent with the evidence of Pilisive Sio and Mark Gahare. Nancy Koke’s evidence was submitted to be inconsistent with the medical report by the appellant. Nancy Koke gave evidence of the appellant’s Korokoro and Pimul assaulting Paul Siove with others either punching or kicking. There is no evidence from Nancy Koke whether the punches connected to Paul Siove’s body and which part of his body the punches and kicks landed. Counsel for both the State and Defence failed to ask those specific questions of the witness.

11. Defence counsel’s submission at the trial, and on appeal on the major inconsistencies was largely premised on the autopsy report by the medical doctor. The submission is that the medical report reported no external wounds or injury on the face or body therefore evidence of Nancy Koke that Korokoro and Pimul hit or kicked Paul Siove cannot be true or believed. There was only a 4 to 5 centimetre deep laceration to Paul Siove’s left eyebrows. There was nothing wrong with his teeth and there were no wounds and external injuries to his chest. The submission was that Nancy Koke’s evidence was therefore inconsistent with the medical report.

12. With respect the Defence Counsel did not specify and particularise the major inconsistencies between Nancy Koke’s evidence and the medical report or the major inconsistencies between her evidence and that of Pilisive Sio and Mark Gahare.

13. Nancy was never asked where on Paul Siove’s body the punches and the kicks she said she saw inflicted, landed. Nancy never said the punches landed on Paul Siove’s face or chest or mouth? How could her evidence be inconsistent with the medical report as suggested by the appellants counsel when the counsel failed to ask the relevant questions where the punches and the kicks landed on Paul Siove’s body. The submissions in the National Court by the Defence Counsel that Nancy’s evidence was inconsistent with the medical report was therefore misleading and inconsistent with the evidence at the trial.

14. Nancy Koke’s evidence at the trial at the bottom of pages 26 and 37 is that Korokoro went after Paul Siove and “hit him” not with any weapon but with his bare hands. Where his bare hands landed on Paul Siove is not known because Counsel never asked. On page 27 line 23 she said “everybody threw punches at him”. Again where those punches landed on Paul Siove’s body is not known because counsel never asked. “I saw Korokoro hit him” and Pimul Komeao came and said, “kill them, kill them”. On page 28 she said Pimul Komeao kicked him. Again, where on his body Korokoro Kanukanu and Pimul Komeao kicked him is not stated by the witness as the witness was never asked. How then can her evidence given in that way, be said to be inconsistent with the medical report? I do not agree with the submissions advanced by the appellants on that ground.

15. Nancy Koke’s other relevant evidence on page 28 lines 30, 31 and 32 is that she said “they lifted him and threw him into the drain. They threw him head first and the depth of the drain is from where the white paint is down to here”. She was not asked who the “they” are referred to were. Counsel agreed the drain was about 2 meters deep. The base of the drain is cemented with stones. She did not say the head landed on the cement base, although that is the obvious inference to be drawn from her evidence.

16. Defence counsel in submissions suggested that with that kind of evidence, he expected the skull of Paul Siove to be fractured and that there should have been bruises on his body. Defence Counsel had the opportunity to call the concerned Doctor who filed the report to cross-examine him to give an opinion on the evidence. Counsel is not a witness nor a medical doctor to give such an opinion in his misleading submission. Counsel must be careful not to mislead the Court and make or give opinions from the bar table on matters he is not an expert on.

17. The 4 to 5-centimetre-deep laceration on Paul Siove’s left eyebrow in my respectful opinion would be consistent with someone thrown head first into a 2 meter deep drain. To make a submission that “there was only 4 to 5 centimetre deep laceration” to a human body is in my respectful opinion an understatement. Such a wound in my respectful opinion is a serious penetrating wound.

18. The medical report describes the cause of death as “died of Cardio-Respiratory Arrest from severe Neurogenic shock due to complete Spinal Cord Transection at the 5^th and 6^th Cervical Spine level on 30 July 2012 at 5.00pm”.

19. Both the State and Defence Counsel failed to get the concerned Doctor to explain the meaning of his report or any other doctor for that matter to explain the cause of death and if the cause of death was consistent with the given facts. The learned trial judge concluded that the deceased was lifted and thrown into the drain and as a result sustained a severe spinal injury. There is no appeal against that finding.

20. A person thrown 2 meters down into a drain and has his or her spinal cord broken or fractured is by inference consistent with that fact. To suggest that it is inconsistent with the evidence as presented before the Court is to me, with respect not correct. The truth should not be twisted to suit one’s position in a case.

21. With respect, I reject the appellants submissions that there were major inconsistencies in the State evidence in that the main State witness, Nancy Koke’s evidence was not consistent with the medical report. The fatal injuries were not caused by the punches or the kicks on Paul Siove’s body, rather the fatal act was the throwing of Paul Siove head first into a cement basement drain which caused the fracture of the Spinal Cord and from which Paul Siove also sustained a 4 to 5 centimetres deep wound, and which was the cause of death.

22. The State at its opening did invoke Section 7 of the Criminal Code Act. Korokoro and Pimul were part of the crowd and therefore involved in throwing Paul Siove into the drain. They were not real bystanders. Their presence was indication of not only their respective involvements but also supportive of the actions of others thereby bringing into operation of Section 7 of the Criminal Code.

THE LAW ON APPEALS AGAINST CONVICTION

23. The appellants have the right to appeal the decisions of the National Court in convicting them. That right is conferred on the appellant by S37(15) and (16) of the Constitution which says:

S37”(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law

(16) 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”

24. A convicted person has a right of appeal to the Supreme Court on any grounds set out under Section 22 of the Supreme Court Act. See Wili Kili Goiya [1991] PNGLR 170.

25. Section 22 of the Supreme Court Act says:

“A person convicted by the National Court may appeal to the Supreme Court –

(a) Against his conviction on any ground that involves a question of law along; and
(b) Against his conviction, on a question of mixed fact and law; and
(c) With the leave of the Supreme Court to be a sufficient ground of appal; and
(d) With the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.

26. In this appeal the appellants invoked Section 22 of the Supreme Court Act. Order 7 of the Supreme Court Rules sets out the requirements the appellants are to comply with. Order 7 Rules 7,8,9 and 10 of the Supreme Court Rules come to the fore. Order 7 Rule 9(c) requires the appellants to state briefly but specifically the grounds relied on in support of the appeal. Order 7 Rule 10 of the Supreme Court Rules say:

“Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law”.

27. With respect Order 7 Rule 10 of Supreme Court Rules requires the appellants in their notices of appeal to specify with particularity the grounds relied on to demonstrate that it is against the weight of the evidence and specify why it is stated to be wrong in law. In this case again with respect, the appellants grounds of appeal in their notice of appeal is too general in that they do not specify and particularise the specific inconsistencies and they do not specify which part or parts of Nancy Koke’s evidence is inconsistent with that of either Pilisive Sio or Mark Gahare

28. The primary issue at the trial was whether the appellants took part in the killing of Paul Siove. The learned trial judge was satisfied beyond reasonable doubt they were involved. The State invoked Section 7 of the Criminal Code Act as well. The evidence of Nancy Koke agreeing in cross-examination that the appellant Pimul Komeao told them to get into the Kabiufa people’s bus was not a major deficiency in her evidence. Her main evidence was that Pimul Komeao was involved in the assaults on the deceased and that he urged the crowd to “kill them”. Counsel did not ask Nancy Koke, at what point Pimul Komeao asked her to get into the Kabiufa people’s bus.

29. The learned trial judge addressed the inconsistencies on page 164 of the appeal book. With respect I do not see any error or identifiable error in his findings on the evidence presented to him.

30. The case law on appeals against conviction are specified in the following cases by the Supreme Court:

1. John Beng v The State (1977) PNGLR 115 where the Court said:
   

“On an appeal against conviction pursuant to section 22(1)(a) of the Supreme Court Act, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the satisfactoriness of the verdict before the appeal will be allowed.

2. Jimmy Onopia v The State (2002) SC 698 where the Court said that an appellant is obliged to point out to the Court an identifiable or demonstrable error. See also Vali Rocky Mauri v The State (2001) SC668.
   

100. Richard Liri v The State (2007) SC 883 where the Supreme Court said, the Court should not readily interfere with the National Court’s findings relating to assessment of witnesses’ demeanour and credibility, as the trial judge was in a better position to assess the demeanour of witnesses that the Supreme court should only interfere in the clearest of cases.
     

31. In my respectful view in that regard justice has not miscarried; the learned trial judges’ findings and the end resultto convict and then sentence them is in accordance with the evidence before him is to my mind lawful and in order. The decision of the learned trial judge with respect is therefore upheld and the appeal dismissed.

32. The formal orders of the Court are that:

1. The appeal is dismissed.
2. The conviction and sentences imposed by the National Court are upheld.
   

33. TOLIKEN J: The Appellants were convicted on 21st October 2013, for the murder of one Paul Siove on 30^th July 2012 in Goroka. They appealed against their convictions only. The appeal lies as of right.

GROUNDS OF APPEAL

34. The appeal lies without leave pursuant to Section 23 of the Supreme Court Act. The grounds of appeal are:

1. His Honour erred in law and in fact in believing and placing too much weight on the State’s witnesses and finding their inconsistencies as minor when there were major inconsistencies in their evidence with regard to the assaults received by the deceased and the circumstances in which identification was made, ignoring the evidence of a White Landcruiser which surfaces at the cross-examination.
2. His Honour erred in law and in fact in finding that the Appellants murdered the late Paul Siove by assaulting the deceased when the State witnesses’ evidence is inconsistent with the medical report.
3. His Honour erred in law and in fact in finding that the appellants and others murdered the late Paul Siove by assaulting the deceased and throwing him into the drain when the State witnesses’ evidence regarding assault was inconsistent with the medical report.

Grounds 2 and 3 basically say the same things and therefore can and will be treated as one ground.

ISSUES

35. The grounds of appeal generally pleaded that there are major inconsistencies over which the primary judge is said to have placed very little weight and erroneously treated as minor. The issues are therefore:

1. Whether the primary judge erred by placing too much weight in the evidence of State witnesses and treating as minor, major inconsistencies as regard to the assaults on the deceased and the circumstances in which identification was made and the issue of a white Landcruiser that appears at the scene of the killing.
2. Whether the State’s evidence as to the deceased’s cause of death was inconsistent with the medical evidence.
3. Whether in all the circumstances there was reasonable doubt as the as to the safeness or satisfactoriness of the Appellant’s conviction.
4. Whether there was actual miscarriage of justice.
   

THE LAW

36. For an appeal against conviction the Appellant must demonstrate to the Supreme Court the existence of one or more of the grounds stipulated by Section 23 (1) of the Supreme Court Act Ch. 35, before conviction can be set aside.
    
37. These grounds are that –
    

(a) under all the circumstances of the case the conviction is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted was based on a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial.

38. As the Supreme Court said in Havila Kavo v The State (2015) SC1450 when re-emphasizing the well-established principle in the seminal case of John Beng v The State [1977] PNGLR 115:
    

"To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115)".

39. And in so doingthe appellate court has a duty to consider the whole of the evidence to determine whether the verdict, in all the circumstances, is unsafe and unsatisfactory: James Pari v The State [1993] PNGLR173.
    

BACKGROUND

40. The State alleged that on 30 July 2012, around 5.00p.m. the deceased (Paul Siove), an elderly man was in the company of three other persons waiting for a bus at the Goroka Market Bus Stop to go home to Kabiufa. While there the Appellants and others came along and started assaulting people from the deceased’s line and a fight broke out.
    
41. The Appellant Korokoro Kanukanu was the first to approach the deceased and his group and started to punch the deceased. As he was doing that the Appellant Pimul Komeao came along saying “kill them, kill them!” As a result, more people converged on the deceased, kicking and punching him. They eventually picked him up and threw him over a drain at the end of the road. The deceased fell, head first into the deep drain and as result broke his neck. He was taken to the hospital but died on arrival.
    
42. The State alleged further that the Appellants intended to cause the deceased grievous bodily harm and also invoke Section 7 of the Code.
    

THE EVIDENCE

43. The State’s first witness Nancy Koke is a community school teacher. She testified that on the date in question, 30^th July 2012, she was at the Goroka Market Bust Stop with three elderly men, the deceased, Pilisivo Sio and Mark Gahare, waiting for a bus to their village. There were a lot of people at the Bus Stop.
    
44. After a while she saw a group of boys from Kabiufa approaching from the direction of the market. Among them was the Appellant Pimul Komeao. He was looking around intentively, signalling the group of boys to move in different directions, which she interpret to mean that they were looking for their enemies. She told the three elderly men that Pimul Komeao was

looking for his enemies. She was not their enemy, so she did not feel threatened.

45. As they stood watching, Pimul Komeao and his group moved down to the Suave Market. Soon after she heard shouting from a fight down at the Suave Market. They still were not concerned believing that the fight did not involve them. However, when they saw Pimul and his group chasing people from seven (7) villages including Akameku, they became scared and wanted to run away for their safety. They moved behind a Landcruiser not realising that it belonged to their enemies the Kabiufa.
    
46. As they were standing there the Appellant Korokoro Kanukanu (Korokoro) approached them and started accusing them of supporting certain candidates who were contesting the Goroka Open Electorate. He wanted to hit Nancy, but she told him to go and challenge his enemies, so he turned to Pilisive Sio and punched him twice. He then turned to Mark Gahare. Seeing this the deceased turned and ran across to the other side of the road. Korokoro ran after him and assaulted him there. A lot of people surrounded the deceased and joined Korokoro in assaulting him. And as this was happening Pimul came onto the scene shouting, “kill them, kill them!” and joined in kicking the deceased. Then the group picked up the deceased and threw him into the 2meter deep drain head first and left. Nancy and Pilisive went over and lifted the deceased from the drain and placed him on a tree stump. She then left to look for a vehicle to take the deceased to the hospital. While she was away though the deceased was taken away to the hospital. She followed later only to be advised that the deceased had died.
    
47. The State’s second witness Pilisive Sio was with Nancy Koke and others at the Goroka Market Bus Stop when the fight started down at the Suave Market. He saw the Kabiufas chasing the Akamekus. As the fight moved towards them, they retreated behind a 10-Seater Landcruiser. Korokoro came up and started assaulting them accusing them of supporting a candidate by the name of Aye Tambua. He threatened to assault Nancy and then turned on him and assaulted him also. In his attempt to escape the deceased ran across to the other side of the road. Korokoro followed him and assaulted him badly. Pimul appeared on the scene shouting, “kill him, kill him!” and joined in kicking the deceased. The Appellants and others continued to assault the deceased and then threw the deceased into the drain. Pilisive retrieved the deceased from the drain and then arranged for the deceased to be taken to the hospital. Pilisive knew the both Appellants well. Korokoro is a son-in-law and Pimul is a brother of his and ward councillor.
    
48. The State’s third witness Mark Gahare confirmed that he was with Nancy Koke, the deceased and Pilisive when Kokokoro approached and accused them supporting Aiye Tambua. He confirmed the attempted assault on Nancy and the assault on Pilisive. Seeing this he got scared and fled the scene. However, some people followed him and assaulted him, punching him from the back and he fell down but a person by the name of Jeff came to his rescue. Apparently, this witness did not see what happened to the deceased after he left the scene but knew Korokoro well as they are from the same area.
    
49. Both Appellants on the other hand gave sworn evidence and called 2 other witnesses.
    
50. Pimmul Komeao testified that he was at the Tusa Clinic with some village boys to arranging transport to take the supporters and campaign officers for candidate Venapoe home from the counting venue at the National Sporting Institute. While there they were informed of a fight at the Goroka Market and they proceeded there. On the way the boys jumped on to a bus while he continued by himself to where the fight was at the market. At the Lae bus stop he sighted Mark Gahare walking down with mud on his face. He asked him about his assailants, but Mark Gahare told him he did not know who they were as they assaulted him from the back. He then handed Mark Gahare over to Jeff Gitene, a man from Akameku. He then realized that the fight was at Suave Market and so he ran down there. He noticed a green bus from Kumusi stopped and in the middle of the road. People entered the bus and started assaulting the occupants and the driver. Pimul said he told the driver to get back inside the bus. The driver complied and drove away.
    
51. As Pimul stood there another fight broke out at the main market area and so he proceeded there. He saw a group of people fighting at the side of the market. He went inside where saw Poto Matane from Akamekua. Judging from the people around that there was no threat to Potomatane he left.
    
52. Looking across to the Kotuni/Kafuku bus stop he saw state witnesses Nancy Koke and Pilisive Sio among another group of people by the roadside. He walked straight to them just as his people’s 10 Seater Landcruiser was driving down. He stopped the Landcruiser. He then went over to Nancy Koke and Pilisivo Sio and told them to get in. He opened the back door for them and then went back to the market where he stayed with a man named Abiro for about 4 – 5 minutes and then went home.
    
53. Both Nancy Koke and Pilisivo Sio confirmed in cross-examination that Pimul indeed urged them to get into the Landcruiser but then almost immediately alighted for different reasons. Nancy Koke said she came out after realising that the vehicle belonged to their enemies while Pilisivo said he came out to assist the deceased who obviously was seriously wounded.
    
54. Pimul’s evidence of assisting Nancy Koke and Pilisivo Sio get into the Landcruiser was further corroborated by the defence’s second witness Alson Vegu. Alson Vegu had returned from the counting at the National Sports Institute. He got on a bus at West Goroka head for the main market. He got off at Ela Motors and walked to the Kamaliki bus stop to catch a bus home to his village at Kabiufa. Before he got on, he noticed a crowd of people and saw Pimul open the door to a 10 seater Landcruiser and telling Nancy and Pilisivo to get in.
    
55. Korokoro Kanukanu told the court that he was the counting centre at National Sports Institute on the date in question between 5.00 – 6.00p.m. He left the venue to go home to Kabiufa and walked to the Suave Market. He bought some betelnut and got a bus to go home. On the way he observed a fight at the KK Farmer area. He did not see the deceased, Nancy Koke, Pilisivo or Mark Gahare at the bus stop area. He said with James Gohumane also from Kabiufa.
    
56. James Gohumane testified that he too was at the counting venue that day. He, however, left for the main market to catch a bus home. He was there between 5.00p.m – 6.00p.m. He then walked down to the Suave market to chew betelnut. He then walked back to the main market and took a bus home. He said Korokoro was with him. He said he did not see anything happening at the bus stop or at the market area. However, he did see a fight at KK Farmers Store area but did not know what happened after he left.
    

FINDINGS OF FACT BY TRIAL JUDGE

57. The trial judge found the following facts. There was a fight at the Goroka market bus stop on 30^th July 2012 between 5.00 – 6.00p.m. It was related to the election results that emanated from the counting venue at the National Sports Institute for the Goroka Open Electorate in which one Moses Venapoe of Kabiufa was a candidate. His supporters were not happy and accused people from other villages including Akameku where the deceased came from, of supporting rival candidates. A fight ensued where the deceased was assaulted and thrown into a 2meter-deep drain. He sustained a fracture of the spinal cord around the neck and died as a result.
    
58. The Appellants did not dispute that they were at the scene around the time when the fight occurred but denied being involved in the fight. Neither did they dispute that the deceased died from a dislocated neck.
    
59. His Honour found that the fight started when the Appellant Korokoro started accusing and assaulting Nancy Koke, Pilisive Sio, Mark Gahare and the deceased at the Goroka Market Bus Stop area. The deceased wanted to get away and crossed to the other side of the road. Korokoro went after him and assaulted him. Other people from Kabiufa, including the Appellant Pimul Komeao, joined him in assaulting the deceased. They group then picked up the deceased and threw him into the drain and he sustained the injuries from which he died.
    

After warning himself of the dangers inherent in identifying the Appellants in the prevailing circumstances, His Honour found that the Appellants who were known to State witnesses were positively identified. And because the attack and assault on the deceased (and the State witnesses) occurred about 7/8 meters away from the witnesses in an open space without anything obstructing the witnesses’ views, His Honour was satisfied that the Appellants acted in concert with the other people when they assaulted him and threw him into the drain. His Honour accordingly convicted the Appellants.

61. I now turn to the issues.
    

DELIBERATIONS ON ISSUES

ISSUE 1: Whether there were Inconsistencies Regarding Circumstances under Which Appellants were Identified and Appearance of Landcruiser.

Principles on Inconsistent Evidence

62. This Court has held that the mere existence 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. (Kapahi v. TheState [2010] 2 PNGLR 301(Injia CJ, Cannings, Kariko JJ) Earlier in David v The State (2006) SC 881 (Salika J. (as he then was), Cannings and Gabi JJ.) the court said –

154. In any criminal trial, if there are inconsistencies in the evidence adduced by the State, it is the duty of the trial judge to identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

155. The mere existence of inconsistencies does not mean that the State’s case should be rejected. However, an assessment must be made of how significant they are.

63. This was an appeal from convictions for murder. The justices there found that there were many inconsistencies regarding the timing of events surrounding the murder of the deceased, such as the type of vehicle the accused persons were said to have used, the number of people on it and their identity. Not only did the trial judge not identify these inconsistencies, he was also dismissive of them stating that he was “discounting inconsistencies as to time, type of vehicle, and number of people on it and identity of them". In doing so, the justices held that the trial judge denied himself the opportunity to properly assesses those inconsistencies.
    
64. The justices were also critical of the manner in which the trial judge tried to rationalise the inconsistencies as to time by simply saying that most of the witnesses were villagers who normally guess time. And Given the number and extent of inconsistencies, it was not proper for his Honour to discount them in that way.
    

Current Case

65. In applying the above principles to the current case with the view to addressing the grounds of appeal advanced by the Appellants it is therefore important to ask the following –
    
    1. Did the primary judge identify the inconsistencies brought to his attention by the defence?
    2. Did he assess those inconsistencies?
    3. Did he give any reason why he treated those inconsistencies as minor?
       
    • (i) Identification
      
66. The Appellants contended that there were major inconsistences in the evidence of State witnesses in regard to the circumstances under which they were identified as having assaulted the deceased and the appearance of a white Landcruiser at the scene of the crime which the Appellant contended the primary judge erroneously treated as minor.
    
67. These, the Appellants argued, were major inconsistencies which the primary judge treated as minor and over which no reasonable tribunal of fact could have brushed aside, lesser still rely upon, to convict the Appellants. They argued that His Honour did not identify, assess and give any reason for treating them as minor.
    
68. What did His Honour find in respect of the identification of the Appellants and their part in attacking and assaulting the deceased?
    
69. I find that His Honour addressed suggestions by the defence that the identification of the Appellants was mistaken and he went on to discuss the relevant principles on identification evidence in paragraphs 47 – 50 of his written judgment (p.165 of Appeal Book), and appropriately cautioned or warned himself of the inherent dangers pertaining to the reception and acceptance or rejection of identification evidence. Then from paragraph 51 – 55 (p.166 AB) His Honour analysed the evidence and gave his reasons why he believed the evidence of State witnesses Nancy Koke and Pilisive Sio.
    
70. The Appellants are known to both witness – Korokoro is a son-in-law to Pilisivo while Komeao is a ward councillor. The assault on the deceased occurred in an open space about 7/8 meters way from where Nancy Koke was and about 5 meters from Pilisivo Sio, hence their views were not obstructed. Even though the incident happened around 5.00p.m. and the weather was not fine, there was no rain and the day was clear.
    
71. From the evidence before him, His Honour was satisfied that the Appellants acted in concert with the group that attacked the deceased and threw his body into the drain, having earlier rejected the defence’s suggestion that the deceased accidently fell into the drain. I will return to this particular point a little later when I discuss the second ground of the appeal.
    
72. That the Appellants were positively identified at the crime scene appears clearly to me to have been proved on the criminal standard to the satisfaction of the primary judge. His Honour was also equally satisfied that the deceased was attacked by the group of men from Kabiufa when he fled over to the other side of the road after Kokokoro had attempted to assault Nancy Koke and assaulted Pilisive Sio. His Honour was satisfied from the evidence of the eye-witnesses that the Appellants were part of the group that attacked and threw the deceased into the drain. Further to that His Honour considered the relevant principles on identification evidence and also appropriately warned himself of the dangers inherent there-in.
    
73. There was no inconsistency in the evidence of Nancy Koke and Pilisive Sio and so we therefore reject the Appellants’ contentions in that regard. But even if there were, we are satisfied that His Honour appropriately dealt with them.
    

(ii) Presence of White Landcruiser

74. Apart from the question of identification the Appellants also makes reference in their grounds of appeal to the presence of a white Landcruiser at the scene of the crime. While the transcript does show that this was brought up in cross-examination by the defence and in their subsequent final submission, this point was not even mentioned, let argued or put to us during the hearing of this appeal. I deem therefore that this aspect of the first ground of appeal was abandoned and I say nothing further about it, except to say that the both witnesses did confirm in cross-examination that they were let into the Landcruiser by Pimul Kameao but came out almost immediately. And they gave perfectly sound reasons for doing so.
    
75. Hence in respect of the first ground of appeal I find that the primary judge sufficiently identified that the Appellants as being among the group of men who assaulted the deceased. They were not innocent by-standers. Rather they actively took part in assaulting him.
    
76. The evidence clearly shows that Kokokoro initially threatened to assault witness Nancy Koke, turned to Pilisive Sio and punched him twice before turning his attention to Mark Gahare. Seeing this, the deceased ran across to the other side of the road for his safety. Korokoro followed him and assaulted him there as Komeao burst onto the scene saying “kill him, kill him!” They were soon joined by others and the group threw the deceased into the drain.
    
77. This ground of appeal should therefore be dismissed.
    

Issue 2: Whether the Oral Evidence was Inconsistent with the Medical Report.

78. The Appellants then contended that the oral evidence was inconsistent with the medical report. What was the oral evidence and what did the medical report say?
    
79. Essentially the evidence from the Nancy Koke and Pilisive Sio is that the after the Kabiufa men and the Appellants assaulted by punching and kicking the deceased all over his body, they threw him head first into the drain.
    
80. The medical report showed that deceased sustained a 4 – 5 cm laceration to the left eyebrow, and a fractured neck at the 4^th and 5^th cervical spine level from which the deceased died. Apart from that there were no other obvious external injuries or deformities noted on other parts of the body.
    
81. The defence submitted at the trial that the deceased accidently fell into the drain and that the injuries he sustained are consistent with that theory. His Honour, however, rejected that argument and held that the evidence overwhelming showed that the deceased was assaulted and thrown into the drain. (See paragraph 45 of the judgment – p.164 of AB)
    
82. At paragraph 46 of his judgment (p.164 of AB) His Honour said–
    

46. The defence also argued that the state witnesses were not credible and reliable witnesses. I disagree with this submission. To the contrary I find them credible witnesses despite minor inconsistencies which in my view are insignificant and otherwise expected in any case. These inconsistencies do not affect the overall weight of the prosecution case. They gave eye witnesses account of the incident. They were together as a group and when one of their group members, in particular an old man, was accosted and assaulted naturally they took particular interest in his security and welfare. None of the defence witnesses including the 2 accused gave evidence as to how the deceased came to meet his fate.”

83. The transcript reveals that the defence alluded to specific inconsistencies in cross examination and in their submissions. Some of these included the number of punches and kicks said to have been delivered by the Appellants on the deceased when he crossed over to the other side of the road just before he was thrown into the drain. Given the fact that a lot of people were simultaneously assaulting the deceased, in our opinion, His Honour correctly held that the witnesses could not have reasonably been expected to see, let alone, recollect every detail with particularity and with the same exactness.
    
84. But then there was the inconsistency between the oral evidence of State witnesses and the medical report. Witnesses Nancy Koke and Pilisive Sio testified that apart from the Appellants, others joined in attacking and assaulting the deceased, punching and kicking him all over his body. They further testified that the mob picked up the deceased and dumped him head first into the 2 meter-deep drain. This was not addressed by the trial judge at all in his judgment. This was an inconsistency that should not have been simply brushed aside as minor.
    

Given the evidence, and particularly the nature of the assault by multiple assailants, one would naturally expect the deceased to have sustained a fractured skull if he landed head first, or that he would have sustained multiple injuries to his body. That was, however, not the case. The medical report clearly shows that apart from a fractured neck at the 4^th and 5^th cervical spine level, from which the deceased died, and a 4 – 5 cm laceration to the left eyebrow, there were no other obvious external injuries or deformities noted on other parts of the body.

86. The laceration on the eyebrow could have indeed been inflicted by the Appellants when they punched the deceased, or it may have been inflicted by others who joined in assaulting him. In a group attack it is not reasonable to expect witnesses to see precisely what each individual did as I noted earlier and as the trial judge correctly said in his judgment.
    
87. In the prevailing circumstances, it may also have been possible that the deceased hit his neck on the side of the drain on his way down. But it may also have been the case that the mob threw the deceased horizontally across - face up and head first - toward the drain and that he hit his neck on the edge of the drain before falling into the drain. That would perhaps explain the absence of an any lacerations or fracture on the deceased’s skull.
    
88. These were things which His Honour could have considered had he directed his mind to the inconsistency that was put before him, and he would have been perfectly within his discretion to draw the necessary inferences therefrom. He, however, failed to do that and instead nonchalantly brushed the inconsistencies aside as minor.
    
89. As it is, His Honour did not identify what the “minor inconsistencies” were in this regard. He merely dismissed them as being insignificant when considered against the overall weight of the State case. His Honour did not assess the significance or otherwise of those inconsistencies, let alone give any reasons why he considered them insignificant. Even if these did not affect the overall evidence or the weight of the State case, he was duty bound to identify, assess and give reasons why he dismissed the inconsistencies as minor.
    
90. I find ultimately that the trial judge erred in not applying the relevant principles when addressing the inconsistencies between the oral evidence by State witnesses and the medical report.
    

ISSUE 3: Whether in all the circumstances there was reasonable doubt as the as to the safeness or satisfactoriness of the Appellant’s conviction.

91. Quite apart from the fact that the verdict may have ultimately been supported by the evidence when considered in its entirety, His Honour’s failure to identify, assess and given reason for treating the inconsistencies as minor must render the verdict unsafe and unsatisfactory.
    
92. I acknowledge that the trial judge is always in a superior position, being able to hear and see the witnesses and their demeanour first-hand. The appellate court is not similarly placed and when it is asked to overturn a decision of the former, it should not be too quick to overturn finding of facts by the trial court. While that may be case, an appeal to the Supreme Court is by way of a hearing on the evidence adduced in the court below as provided Section 6 of the Supreme Court Act.
    
93. The Supreme Court may allow fresh evidence in appropriate cases (upon application of course) and draw inferences of fact from the evidence. Section 6 further imbues the Court with all the powers, authority and jurisdiction of the National Court. Hence the Supreme Court is not precluded from making its own findings and from drawing its own conclusions from the same evidence that was before the trial or primary judge. (Kapahi v State (supra); Brian John Lewis v The State[1980] PNGLR 219)
    
94. Section 6 of the Supreme Court Act relevantly provides –
    

6. APPEAL TO BE BY WAY OF REHEARING.

(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court–

(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and

(b) to draw inferences of fact.

(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

95. The powers of the Supreme Court in determining ordinary appeals are provided by Section 23 of the Supreme Court Act as follows –
    
    23. DETERMINATION OF APPEALS IN ORDINARY CASES.
        

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that–

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(2)Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred. (Underlining supplied)

(3) If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.

(4) On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

96. Section 23 (1) clearly shows that a conviction will be set aside if one of three things can be shown to the satisfaction of the Supreme Court, (1) the conviction was unsafe and unsatisfactory (2) the conviction was based on an error of law, or (3) grave immaterial irregularity in the conduct of the trial.
    
97. But even if the court were to find that the appeal may be allowed on any of the grounds stated, Section 23 (2) of the Act gives the court the discretion to dismiss the appeal if it is of the opinion that there was no actual miscarriage of justice.
    
98. In this case I found that the primary judge did not identify the inconsistencies in respect of the oral evidence and the medical report which he described as minor. He did not assess them, let alone give reasons for rejecting them and why he believed the evidence of State witnesses. Obviously as I have found, this error would render his verdict unreliable and satisfactory.
    

ISSUE 4: Whether there was miscarriage of justice

99. Notwithstanding that the verdict may have been unsafe and unsatisfactory for the reasons alluded to above, was there actual miscarriage of justice?
    
100. The primary findings of the trial judge that the Appellant Korokoro was the first the approach State witnesses Nancy Koke, Pilisive Sio and Mark Gahare, and the deceased, that he first attempted to hit Nancy Koke, and then turned his attention to Pilisive Sio and punching him twice was not discredited in any material way. Neither was the evidence that the deceased crossed over to the other side of the road to avoid being assaulted by Korokoro, and that Korokoro followed him and assaulted him there, and that Pimul Komeao burst on to the scene, encouraging those who had by now joined Korokoro to kill the deceased and also joined in assaulting him. There is no dispute that the deceased ended up in the drain and sustained a broken neck from which he died.
     
101. While the exact manner in which he sustained that injury was disputed, the primary judge correctly held that in the prevailing circumstances it would not have been reasonable to expect the State witnesses to note with particularity how many punches and kicks each of the Appellants, or any other member of the mob for that matter delivered on the deceased from their respective vintage points across the road while at the same time thinking about their own safety.
     
102. Yes, the oral evidence of Nancy Koke and Pilisive Sio was indeed inconsistent with the medical report, but I am of the opinion that these witnesses were merely describing the event in general terms as people often do in situations like this.
     
103. There no dispute that the both Appellants acted in concert with other men from their village and assaulted the deceased. They were in fact the main persons in this whole saga. The evidence clearly shows that the men from Kabiufa and the Appellants picked up the deceased and threw him into the drain. Whether or not he would have landed on him head thus sustaining injuries on this head instead of the neck cannot be taken as the only possibility because as I have said, he could have struggled and hit his neck as he was falling into the drain, or he could have been hurled towards the drain horizontally face up and hit his neck on the edge of the drain before falling in. These are inferences which we can reasonably draw from the evidence before the primary judge which are now also before us. This Court is entitled to so hold by virtue of Section 6 (2) of the Supreme Court Act.
     
104. I am satisfied that the Appellants were very active and leading participants of the group of men from their village who attacked and assaulted the deceased and threw him into the drain wherein he sustained a broken neck and died. The State invoked Section 7 of the Code and the evidence clearly showed that they acted in concert with the others as the trial judge correctly found. They definitely were not innocent bystanders.
     
105. In those circumstances we find that there was no actual miscarriage of justice when the Appellants were convicted for the murder of the deceased notwithstanding that the primary judgment did not addressed the inconsistencies between the oral evidence of State witnesses and the medical report.

ORDERS

106. I would therefore alsodismiss the appeal and affirm the convictions of the Appellants by the National Court.

I would order therefore that –

1. The Appeal by the Appellants against their conviction by the National Court 23^rd October 2013 is dismissed.
2. The decision of the National Court convicting the Appellants is affirmed.
   
107. POLUME –KIELE J: This is an appeal filed under s 23 of the Supreme Court Act against the decision of the National Court, Goroka, made on 21 October 2103 convicting the appellants of one count of murder under Section 300 (1) (a) of the Criminal Code.
     
108. The appeal is against conviction only.
     

Grounds of Appeal

109. Three grounds of appeal were raised by the appellants. These were:
     
     • (1) His Honour erred in law and in fact in believing and placing too much weight on the State witnesses and finding their inconsistencies as minor when there were major inconsistencies in their evidence with regard to the assaults received by the deceased and the circumstances in which identification was made, ignoring the evidence of a White Landcruiser which surfaces at the cross-examination.
       
     • (2) His Honour erred in law and in fact in finding that the appellants murdered the late Paul Siove by assaulting the deceased when the State witnesses’ evidence is inconsistent with the medical report.
       
     • (3) His Honour erred in law and in fact in finding that the appellants and others murdered the late Paul Siove by assaulting the deceased and throwing him into the drain when the State witnesses’ evidence regarding assault was inconsistent with the medical report.
       

Issues

In order to determine the appeal, the issues that need to be addressed by this Court is to consider whether the primary judge erred in placing too much weight on the evidence of the State witnesses which they say were inconsistent and or not supported by the medical reports and contradictory to each other?

The law on criminal appeals

110. Section 22 of the Supreme Court Act (SCA) provides for appeals in the following terms:
     

“22 A person convicted by the National Court may appeal to the Supreme Court –

(a) against his conviction, on any ground that involves a question of law alone, and

(b) against his conviction, on a question of mixed fact and law,

(c) with leave of the Supreme Court, or on the Certificate of the National Court that it is a fit case for appeal, against conviction on any ground of appeal –

(i) that involves a question of fact alone; or

(ii) that appears to the Supreme Court to be sufficient ground of appeal; and

(d) with the leave of the Supreme Court, against the sentence passed on his conviction unless the sentence is one fixed by law.”

111. Order 7 Sub-division 2 on the other hand, provides for Application for leave to appeal: -
     

“3 Where an appeal from a judgment lies to the Court only with leave, an application shall be determined after an oral hearing

4 An application for leave to appeal shall be made by filing a notice in writing and shall –

(a) ...

(b) show that an appeal lies without leave;

(c) state the nature of the case, the questions involved and the reason why leave should be given; and

(d) ...

(e) ...

112. In this case, the appeal is of right. No leave to appeal is required (Order 7 Rule 4 (b) of the Supreme Court Rules.
     
113. Essentially, s 23 of the Supreme Court Act 1975 provides for an appeal against conviction. It states –
     

“(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(3) ...

(4) ...”

Addressing the Grounds of Appeal

114. The grounds relied upon by the appellants is that the circumstances of the case do not support such a conviction of murder. In that:
     
     • (1) His Honour believing and placing too much weight on the State witnesses and finding their inconsistencies as minor when there were major inconsistencies in their evidence with regard to the assaults received by the deceased and the circumstances in which identification was made, ignoring the evidence of a White Landcruiser which surfaces at the cross-examination.
       
115. Firstly, in practice, the prosecution decides who to call as witnesses during a trial. Furthermore, three State witnesses were called: Nancy Koke, Pilisive Sio and Mark Gahare. It is therefore the obligation of the defence counsel to cross-examine the witnesses to adduce evidence to support his case. For this present appeal, I have caused a perusal of the records of proceedings (transcripts of the trial) and I must point out that, these records do not show any questions being led by the appellants through their lawyer during the course of the trial where the State witnesses are crossed-examination as to the injuries sustained by the deceased. That is, whether the deceased could have sustained injuries from or through circumstances other than alleged?
     
     • (2) His Honour erred in law and in fact in finding that the appellants murdered the late Paul Siove by assaulting the deceased when the State witnesses’ evidence is inconsistent with the medical report.
       
116. In regard to this ground, I must point out that the testimonies of Nancy Koke and Pilisive Sio are consistent in one fact and that is, they both say that the deceased was thrown head first into the drain. Both witnesses gave evidence that they recognised the appellants as Korokoro Kanu and Pimul Komea. Both appellants are known to each of them and are related to them in some respects.
     
117. Although it is now contended that the statements of state witnesses were inconsistent with the medical evidence. I find that these contentions unfounded. My reasons for saying this is based on the grounds that the medical report contained in the affidavit of Dr L Kaupa sworn on 18 October 2012, a medical certificate of death, and an autopsy report in respect to the deceased are annexed to the affidavit. The affidavit is marked as “exhibit PI” was tendered by consent of the parties. In my understanding of the medical report, the deceased sustained a broken neck. Now, the issue as to how, the deceased came to sustaining that injury was not contested by the appellants. Questions were not put to the witnesses through their counsel during cross-examination to rebut their evidence. Because both state witnesses said that the deceased was punched, kicked and thrown head first into the drain. No alternative cause of death was put to the witnesses. They are not medical experts who would determine a cause of death. They only attested to the events that they observed as they occurred during the commotion and fight leading to the demise of the deceased that fateful day.
     
     • (3) His Honour erred in law and in fact in finding that the appellants and others murdered the late Paul Siove by assaulting the deceased and throwing him into the drain when the State witnesses’ evidence regarding assault was inconsistent with the medical report.
       
118. Again, I say that a perusal of the transcript does not reveal any questions put to the State witnesses to rebut their evidence. In fact, no evidence was called in court challenging the state witnesses’ testimony as to the deceased being punched, kicked and or thrown into the drain. For instance, in the testimony of Pilisive Sio, he testified that the deceased was punched, kicked picked up and thrown into the drain head first. A perusal of the transcripts reveal that no attempts were put by Counsel for the Accused to the State witnesses either to verify the extent of the assault or how the deceased came to be assaulted which resulted in his death. In regard to the assault occasioned on the deceased, the witnesses, say that the deceased was punched, kicked and thrown into the drain. I make reference to the testimony of Pilisive Sion, more particularly paragraph 40 of page 47 of the Appeal Book, which I quote:
     

“We ran away and Paul, he ran away towards - up that way. He went up to - he ran away up to where the sign board was - where the sign board is. There Korokoro went up and hit him. He hit him and he hit him badly when Pimul went up and said, “kill him, kill him.” and he kicked him with his leg.
...

They planned so they came and killed him and threw him into the drain. After that I went into the drain, carried him up, put him in a vehicle belonging to the Kabiufa and they took him to the hospital. That is all - what I saw, I am telling the court.”

119. Furthermore, in the testimony of Nancy Koke, she also gave evidence that the appellants punched, kicked and threw the deceased into the drain, head first and this is referred to in paragraph 30 of page 28 of the Appeal Book, which I quote:
     

“When he came and hit him, everybody rushed in and threw punches at him and when he said, “kilim em, kilim em”, as he was saying that, he also, Pimul Komeao kicked him. They lifted him and threw him into the drain. They threw him head first and the depth of the drain is from where the white paint is down to here”.

120. The main contention raised by the appellants is at paragraph 10 of page 99 of Appeal Book in which they say that:
     

“there were no external wounds or injury with regard to the face. There was only 4 to 5-centimetre-deep laceration to his left eyebrow, Paul Siove’s left eyebrow. All other facial 10 structures were not injured. The jaws and teeth were not injured according to the medical report. Also, the chest, there is no external injuries or wounds. All was normal. This, they say, is inconsistent with the statement of the first State witness. If Paul Siove had received or had been assaulted, there should have been bruises on his body, clear bruises”

121. Further, the defence submitted at pages 102 and 103 of Appeal Book that:
     

“the court should accept that there was a fight at Chuave market the deceased in fear of his life ran away towards where the signboard is, he tripped himself and he fell. The drain, your Honour, according to the evidence of Nancy is 2 metres deep and the floor of the drain, your Honour, is concrete slab, and he fell head first. When he fell, he landed 30 head first and he landed on his left eye, that was the point of contact when he fell two metres. That is clear from the evidence of the State witnesses that Paul Siove fled whilst they were there. When he landed head first on the left side of his eye, the impact caused his neck to break, your Honour, and that fact submitted, we submit forms the basis in which the deceased died, your Honour. He died because of the fall. There was no assault on him by anybody and that, your Honour, is consistent with the medical report. There was a fracture on the cervical spine at the fourth and fifth cervical spine level, your Honour. The only injury on the face, your Honour, is the injury on the left eyebrow and that, your Honour, we submit is the point of contact when he fell. Apart from that, your Honour, there is no other bruises, no other injuries on his body. Also, your Honour, as to who was the person who landed a fatal blow on the deceased has not been established by the State. The State has not even pleaded section 7 or 8 of the Criminal Code together with section 300 of the Criminal Code, your Honour”

122. The medical evidence overall, is that the deceased sustained severe spinal injuries which caused him to develop cardio respiratory arrest leading to his death. The medical report stated that the deceased “had a complete fracture and dislocation 10 of cervical spine and complete spinal cord transaction at the fifth and sixth cervical spine level.
     
123. However, a perusal of the transcripts does not reveal any questions being put to the state witnesses as to the injuries sustained by the deceased or how he could have sustained such injuries to the neck even if the cause of death was accidental.
     
124. In John Beng v The State (1977) PNGLR 115 the Court said: -
     

“On an appeal against conviction pursuant to section 22(1)(a) of the Supreme Court Act, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the satisfactoriness of the verdict before the appeal will be allowed.

125. In this appeal, this Court is asked to consider the evidence presented during trial and to make a determination as to whether there is in all the circumstances a reasonable doubt as to the satisfactoriness of the verdict.
     
126. For this Court to be satisfied, I refer to the case of Jimmy Onopia v The State (2002) SC 698 where the Court said that an appellant is obliged to point out to the Court an identifiable or demonstrable error (see also Vali Rocky Mauri v The State (2001) SC 668). In this case, a perusal of the transcript reveal that the appellants have not led into evidence any matters that would or could likely cause doubt as to the evidence of the state witnesses’ recollection of the events giving rise to the fight, more particularly, the evidence of the deceased’s being punched, kicked and thrown into the drain. Further, as to the contention that the demise of the deceased could have accidental, this was not put to the state witnesses in cross-examination.
     
127. Having failed to lead evidence to dispute the evidence of the state witnesses, the defence failed to point out to this Court an identifiable or demonstrable error (see Jimmy Onopia v The State (2002) SC 698, Vali Rocky Mauri v The State (2001) SC 668). The primary judge was entitled to assess the evidence before him and demeanour of the witnesses as to their credibility and trustfulness of their testimony. The primary judge determined to believe the state witnesses (see paragraph 40 of page 121 of the Appeal Book). His Honour, the primary judge stated:
     

“... The evidence is overwhelming. The deceased was assaulted and thrown into the drain. The defence also argued that the State witnesses were not credible and reliable witnesses. I disagree with this submission. To the contrary, I find them credible witnesses despite minor inconsistencies which in my view are insignificant and otherwise are normally expected in any case. These inconsistencies do not affect the overall weight of the prosecution evidence. They gave eye witnesses account of the incident. They were together as a group and when one of their group members, in particular an old man, was accosted and assaulted, naturally they took particular interest in his security and wellbeing”

128. There was no identifiable or demonstrable error made by the primary judge in his assessment of the evidence presented before him (see Vali Rocky Mauri v The State (2001) SC 668).
     
129. The judgment also confirmed that the prosecution presented and invoked s 7 of the Criminal Code (paragraph 40 page 113 of Appeal Book).
     
130. Given, these finding, I am of the view that this Court should not readily interfere with the National Court’s findings relating to assessment of witnesses’ demeanour and credibility, as the primary judge was in a better position to assess the demeanour of witnesses. The Supreme court should only interfere in the clearest of cases (see Richard Liri v The State (2007) SC 883).
     
131. Having noted these matters, I am of the view that the issue of the inconsistencies in the evidence of the State witnesses had been addressed by the primary judge, in his decision (paragraph 30 of page 121 of the Appeal Book) in which he had considered the defence in its submissions where Counsel for the appellants suggested that the deceased accidently fell into the drain then argued that the injury is consistent with that theory. His honour in his decision, rejected that submission and held that:
     

“The defence in its submissions suggested that the deceased accidently fell into the drain then argued that the injury is consistent with that theory. With respect, I reject that submission. The evidence is overwhelming. The deceased was assaulted and thrown into the drain. The defence also argued that the State witnesses were not credible and reliable witnesses. I disagree with this submission. To the contrary, I find them credible witnesses despite minor inconsistencies which in my view are insignificant and otherwise are normally expected in any case. These inconsistencies do not affect the overall weight of the prosecution evidence. They gave eye witnesses account of the incident. They were together as a group and when one of their group members, in particular an old man, was accosted and assaulted, naturally they took particular interest in his security and wellbeing”

132. In this case, it is apparent that the primary trial judge did address the inconsistency raised in relation to the State witness, Nancy Koke in her testimony during trail. His Honour the primary judge did not find any significant inconsistencies in Nancy Kike’s evidence or the other State witnesses’ evidence. If there was any inconsistency, it was minor. Further, all witnesses had no difficulty in identifying the appellant as the attackers.
     
133. The evidence of Nancy Koke and Pilisive Sio were critical because both said that they saw Korokoro Kanu and Pimul Komea strike the deceased several times, kicked him and threw him head first into the drain. The medical report states that the deceased suffered a broken neck.
     
134. It is my respectful view that this is not the clearest of cases where this Court should readily interfere. Justice has not miscarried. The conviction and sentence were in accordance with the evidence presented before the primary judge. He was best placed to consider the demeanour and credibility of the appellants’ evidence.
     
135. For these reasons, I dismiss the appeal against conviction.
     

Orders of the Court

1. The appeal is dismissed.
   
2. The conviction and sentence are affirmed.
   
136. The combined effect of the three decisions is that the appeal is dismissed and the conviction affirmed.

________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent