SC2240
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NOS 35, 36 & 38 OF 2020

DONALD JOE STEVEN,
JASON YVIA KAWI &
ALPHONSE LANCE MOHA
Appellants

V

THE STATE
Respondent

Waigani: Cannings J, Auka J, Gora J
2022:  25th February, 24th May

CRIMINAL LAW – appeal against conviction for armed robbery, Criminal Code, s 386(1), (2)(a), (b) – identification evidence reliant on CCTV footage – absence of eyewitness evidence.

CRIMINAL LAW – practice and procedure – voir dire – trial judge’s decision not to rule on admissibility of record of interview and confessional statement due to evidence of fabrication – trial judge’s decision not to rule on no-case submission after close of State’s case due to evidence of accused given in voir dire.

This was an appeal by three prisoners against conviction for armed robbery. They were members of a group of five accused who faced trial. One of the group was acquitted while the other four, including the three appellants, were convicted. It was accepted at the trial that an armed robbery had occurred in the manner alleged by the State. The question was whether the appellants were involved. The State did not present any person present at the robbery to give oral evidence identifying any of the appellants, but presented CCTV footage of the robbery, which the State argued, showed that the first appellant was present and armed with a pistol, threatening people. A voir dire was conducted to determine the admissibility of the appellants’ confessional statements and records of interview. Twelve police witnesses gave evidence in support of the State’s position that each of the appellants was arrested lawfully, and each voluntarily made a confessional statement and admissions in their records of interview. Each appellant gave evidence in the voir dire. The first and second appellants testified that they were assaulted. They denied making the confessional statements and admissions, which they said were fabricated. The third appellant claimed that his confessional statement and admissions in his record of interview were obtained involuntarily. 

In ruling on the voir dire, the trial judge decided that he could not yet rule on admissibility of the confessional statements and records of interview of the first or second appellants as they had given evidence that those documents were fabricated. He rejected the third appellant’s evidence and admitted his confessional statement and record of interview into evidence. The State’s case was closed. The appellants then made a no-case submission, which the trial judge declined to rule on, due to the misconceived procedure deployed on account of the second and third appellants giving evidence in the voir dire that their confessional statements and records of interview were fabricated, which evidence should have been left to the trial proper. The defence case opened, and the three appellants gave no further evidence.

In finding each of the appellants guilty, the trial judge ruled: (a) as to the first appellant, that he was not assaulted and that his confessional statement and record of interview were not fabricated (and those documents were admitted into evidence in the course of the verdict) and that the CCTV footage of the robbery showed that he was directly involved; (b) as to the second appellant, that he was not assaulted and that his confessional statement and record of interview were not fabricated (and those documents were admitted into evidence in the course of the verdict) and that he was involved in the robbery by being armed at a gate used to exit the scene of the robbery, acting as a watchman; and (c) as to the third appellant, that his confessional statement and record of interview, corroborated by the evidence of an accomplice who had been granted immunity from prosecution, showed that he was involved in procuring a pistol and a vehicle used in the robbery, and was liable under s 7 of the Criminal Code. 

A separate notice of appeal was lodged for each appellant containing grounds of appeal peculiar to each, some of which overlapped, to the effect that the trial judge had erred in law and fact in various ways.

The first appellant argued that his Honour erred by: (a) failing to rule on the objection to the confessional statement and record of interview at the end of the voir dire; (b) using the confessional statements of co-accused against the first appellant in the absence of corroboration; (c) relying on identification evidence of a police investigator who was not present at the robbery; (d) misapplying the principles of identification evidence; (e) relying on the first appellant’s confessional statement and record of interview, which were not properly admitted into evidence; and (f) failing to give a ruling on the first appellant’s no-case submission. 

The second appellant argued that his Honour erred by: (a) failing to rule on the objection to the confessional statement and record of interview at the end of the voir dire; (b) using the confessional statements of co-accused against the second appellant in the absence of corroboration; (c) relying on the second appellant’s confessional statement and record of interview, which were not properly admitted into evidence; and (d) failing to give a ruling on the second appellant’s no-case submission. 

The third appellant argued that his Honour erred by: (a) admitting into evidence the confessional statement, which had been induced by a promise to be released from custody; (b) basing conviction on the confessional statement and record of interview, which revealed only that the third appellant had procured the getaway vehicle, not that he was the driver; (c) ruling that the third appellant was a principal offender without distinguishing between whether he was the driver or only the procurer of the getaway vehicle; and (d) failing to give a ruling on the third appellant’s no-case submission.

Held:

(1)	As to the first appellant: (a) was upheld as, having correctly observed that the appellant’s evidence should be deemed to be given in the trial proper, his Honour ought to have admitted the confessional statement and record of interview into evidence and indicated that the weight to be attached to them would depend on an assessment of all the evidence in the trial; (b) was dismissed as his Honour did not use the confessional statements of co-accused against the first appellant; (c) was dismissed as his Honour properly allowed evidence of a police investigator to verify the integrity of the CCTV footage that was admitted into evidence; (d) was dismissed as the trial judge did not misapply the principles of identification evidence; (e) was dismissed as the trial judge made a considered assessment of the credibility of the evidence of the police witnesses, weighed against the credibility of the evidence of the accused and determined that there was no fabrication; and (f) was upheld as his Honour ought to have ruled on the first appellant’s no-case submission.  

(2)	As to the second appellant: (a) and (d) were upheld for the same reasons as for the first appellant; (b) and (c) were dismissed for the same reasons as for the first appellant. 

(3)	As to the third appellant: (a) was upheld as the confessional statement was induced by a promise that if the statement was given, the third appellant would be released from custody subject to an agreement that he provide further information to the police to assist with their enquiries; (b) was dismissed as there was sufficient evidence in the confessional statement, if it was admissible evidence, on which to convict the third appellant; (c) was dismissed as the trial judge did not fail to distinguish between whether the third appellant was the driver or only the procurer of the getaway vehicle; and (d) was upheld as his Honour ought to have ruled on the third appellant’s no-case submission.  

(4)	In conclusion: as to the first and second appellants, though two grounds of appeal were upheld, those grounds demonstrated procedural errors that were not material and did not render the verdict unsafe or unsatisfactory and there was no miscarriage of justice that actually occurred, therefore their appeals were dismissed; as to the third appellant, two grounds of appeal were upheld, the first of which was a significant error, which led to the incorrect admission into evidence of a confessional statement and record of interview, and without that evidence there was insufficient evidence on which to base conviction, therefore the conviction was quashed and, a new trial not being viable, a verdict of not guilty was entered. 

Cases Cited

The following cases are cited in the judgment:

Charles Ombusu v The State [1997] PNGLR 699
Fred Bukoya v The State (2007) SC887
Ilai Bate v The State (2012) SC1216
John Beng v The State [1977] PNGLR 115
McDermott v R (1948) CLR 501
Joshua Yaip Avini & Plaridel Nony Acosta v The State [1997] PNGLR 212
Oscar Tugein v Michael Gotaha [1984] PNGLR 137
Stanley Poke v The State (2010) SC1055
The State v Alphonse Lance Moha & Ors CR No 914 of 2017 etc, 6 November 2020, unreported
The State v August Toiamia (1978) N145
The State v Canute Rambio (1983) N410
The State v James Paru (2021) N9108
The State v John Maino [1977] PNGLR 216
The State v John Yambra Pai (1986) N535
The State v Linus Rebon Dakoa (2009) N3586

Counsel

N. Hukula, for the Appellants
H. Roalakona, for the Respondent

24th May, 2022

1.	BY THE COURT: Donald Joe Steven, Jason Yvia Kawi and Alphonse Lance Moha (referred to as the first, second and third appellants respectively) were convicted after trial by the National Court of one count of aggravated robbery under s 386(1) and (2)(a) and (b) of the Criminal Code. Steven was sentenced to 18 years imprisonment. Kawi and Moha were each sentenced to 16 years imprisonment. They appeal against their conviction. 

2.	They were found guilty of involvement in various ways in an armed robbery that took place at Jackson’s Airport, Port Moresby just before 7.30 am on Thursday 3 November 2016. It was agreed at the trial that an armed gang held up staff at the Tropicair terminal and stole a cash shipment of K1.195 million that was due to be dispatched. The question was whether the appellants were involved. There was another person, Charlton Eric, who faced trial with them. He was also convicted and appealed but escaped from custody leading to summary determination of his appeal.  

3.	The State did not present any person present at the robbery to give oral evidence identifying any of the appellants, but presented CCTV footage of the robbery, which the State argued, showed amongst other things that the first appellant was present and armed with a pistol, in company with other persons, threatening people. The State presented evidence of an accomplice, to whom the Public Prosecutor granted immunity from prosecution, which implicated the third appellant in provision of a vehicle and a pistol allegedly used in the robbery. 

4.	A voir dire was conducted to determine the admissibility of the appellants’ confessional statements and records of interview. Twelve police witnesses gave evidence in support of the State’s position that each of the appellants was arrested lawfully, and each voluntarily made a confessional statement and admissions in the course of being interviewed. Each appellant gave evidence in the voir dire. The first and second appellants testified that they were assaulted and denied making the confessional statements or admissions set out in their records of interview, in support of an argument that those documents, which they did not sign, were fabricated. The third appellant claimed that his confessional statement and record of interview, both of which he signed, were obtained involuntarily.

5.	In ruling on the voir dire, the trial judge decided that he could not yet rule on the admissibility of the confessional statements or records of interview of the first or second appellants as they had given evidence that those documents were fabricated. He rejected the third appellant’s evidence and found that the State had proved beyond reasonable doubt that the confessional statement and admissions in the record of interview were made voluntarily, and those documents were admitted into evidence. The State’s case was then closed. 

6.	The appellants then made a no-case submission, which the trial judge declined to rule on due to what his Honour described as the “misconceived procedure” deployed on account of the second and third appellants giving evidence in the voir dire that their confessional statements were fabrications, which evidence should have been left to the trial proper. 

7.	The defence case opened, and the three appellants gave no further evidence. 

8.	Submissions were then made for the defence and the State. 

9.	In finding each of the appellants guilty, the trial judge ruled: 

(a) as to the first appellant, that he was not assaulted and that his confessional statement and record of interview were not fabricated (and those documents were admitted into evidence in the course of the judgment on verdict) and that the CCTV footage of the robbery showed that he was directly involved, using a gun to threaten people; 

(b) as to the second appellant, that he was not assaulted and that his confessional statement and record of interview were not fabricated (and those documents were admitted into evidence) and that he was involved in the robbery by being armed at a gate used to exit the scene of the robbery, acting as a watchman; and 

(c) as to the third appellant, that his confessional statement and record of interview (admitted into evidence immediately after the voir dire), corroborated by the sworn evidence of the accomplice who had been granted immunity from prosecution, showed that he was involved in procuring a pistol and a vehicle used in the robbery, and was guilty under s 7 of the Criminal Code. 

GROUNDS OF APPEAL

10.	A separate notice of appeal was lodged for each appellant containing grounds of appeal peculiar to him, some of which overlapped, to the effect that the trial judge had erred in law and fact in various ways. 

11.	The first appellant argued that his Honour erred by: 

(a) failing to rule on the objection to the confessional statement at the end of the voir dire; 

(b) using the confessional statements of co-accused against the first appellant in the absence of corroboration; 

(c) relying on identification evidence of a police investigator who was not present at the robbery; 

(d) misapplying the principles of identification evidence; 

(e) relying on the first appellant’s confessional statement and record of interview, which were not properly admitted into evidence; and 

(f) failing to give a ruling on the first appellant’s no-case submission. 

12.	The second appellant argued that his Honour erred by: 

(a) failing to rule on the objection to the confessional statement at the end of the voir dire;

(b) using the confessional statements of co-accused against the second appellant in the absence of corroboration; 

(c) relying on the second appellant’s confessional statement and record of interview, which were not properly admitted into evidence; and 

(d) failing to give a ruling on the second appellant’s no-case submission. 

13.	The third appellant argued that his Honour erred by: 

(a) admitting into evidence the confessional statement, which had been induced by a promise to be released from custody; 

(b) basing conviction on the confessional statement and record of interview, which revealed only that the third appellant had procured the getaway vehicle, not that he was, as alleged by the State, the driver of the vehicle; 

(c) ruling that the third appellant was a principal offender without distinguishing between whether he was the driver or only the procurer of the getaway vehicle; and 

(d) failing to give a ruling on the third appellant’s no-case submission.

FIRST APPELLANT, DONALD JOE STEVEN

(a)  Failing to give a ruling on the voir dire

14.	When his Honour gave his ruling on the voir dire he focused on the third appellant, who had argued that though he signed his confessional statement and record of interview, he had done so involuntarily. 

15.	As to the first and second appellants, his Honour declined to rule on admissibility of their confessional statements and records of interview. His Honour reasoned that because those accused had given evidence that their confessional statements and records of interview were fabricated, all issues surrounding them were matters for the trial proper. In that regard, his Honour was correct. Allegations that a confession was fabricated are matters for the trial proper, not for a voir dire (The State v John Maino [1977] PNGLR 216, The State v John Yambra Pai (1986) N535, The State v James Paru (2021) N9108). 

16.	We agree that there was a misconceived procedure, as his Honour pointed out in the written judgment on verdict (The State v Alphonse Lance Moha & Ors CR No 914 of 2017 etc, 6 November 2020, unreported), due to the failure of both the defence and the prosecution to his Honour to the evidence that was forthcoming. It should not have happened that way, but it did. 

17.	So, what should the trial judge have done? We respectfully consider that his Honour should have, while ruling on the voir dire, admitted the confessional statements and records of interview into evidence (and allocated them exhibit numbers in the normal way), so that they formally became part of the State’s case. His Honour could then have noted that the evidence of the first and second appellants that those documents were fabricated would be deemed to be given in the trial proper. This could have been done without prejudice to the appellants’ defence. His Honour ought to have indicated that the weight if any to be attached to them would depend on an assessment of all the evidence in the trial. 

18.	His Honour did not adopt that procedure. He did not make any ruling on admissibility of the confessional statements and records of interview of the first and second appellants until the verdict. By adopting such an unusual procedure, we consider that his Honour erred. It meant that when counsel made submissions on verdict, there was an element of confusion as to what the evidence was. Submissions should be based on evidence. When there is a dispute over what evidence is properly before the court, the judge should resolve that dispute before asking counsel for submissions. 

19.	We uphold the argument that, by not making any ruling on the admissibility of the confessional statements and records of interview of the first and second appellants until the verdict, his Honour created an element of confusion as to the state of the evidence, upon which submissions were to be made. This was a procedural error. We uphold ground (a). 

(b)  Using the confessional statements of the co-accused against each other in the absence of corroboration

20.	This ground of appeal is based on a false premise: that the trial judge used the evidence of the co-accused against each other. His Honour did not use the confessional statements of any co-accused against the first appellant. He was convicted based on his confessional statement and admissions in his record of interview combined with the CCTV footage which showed that he was a gunman directly involved in the robbery. Ground (b) is dismissed.

(c)  Reliance on identification evidence of police investigator Senior Sergeant Joe Puana

21.	This ground of appeal is also based on a false premise: that a police investigator, Senior Sergeant Joe Puana, gave identification evidence. What in fact happened is that Snr Sergeant Puana gave evidence as to how the CCTV footage was obtained and who it was obtained from, and that evidence was supported by evidence of a Tropicair employee who explained how the footage had been downloaded. The evidence was intended to verify the integrity of the CCTV footage and to show that it had not been tampered with. Ultimately there was no objection to the admission into evidence of the CCTV footage, which was viewed by the trial judge in the courtroom during the trial. Snr Sgt Puana did not give identification evidence. This ground of appeal is misconceived and is dismissed. 

(d)  Misapplying principles of identification evidence

22.	This ground of appeal is misconceived. This was not a case where the court was presented with evidence of alleged eyewitnesses who stated that they saw the accused at the scene of the crime. Identification of the first appellant was tested by the tribunal of fact – the judge – viewing CCTV footage of the robbery and making an assessment, in the context of witness statements by persons who were actually present and described the physical features of the robbers, whether the person in the CCTV footage threatening people with a pistol, was the first appellant.

23.	His Honour viewed the footage, considered the description of the robbers given in witness statements, heard submissions from counsel and concluded:

Having viewed [the CCTV footage] I agree it is a bit blurry but on close view I am satisfied beyond reasonable doubt that the person in “Yakka outfit” is none other than the accused Steven Donald. He fits the description given by witnesses – medium height, dark complexion and from Goilala or Highlands.

24.	We find no error in the process of reasoning by which the first appellant was identified as being directly involved in the robbery. Ground (d) is dismissed.

(e)  Improperly admitting into evidence the confessional statement and record of interview 

25.	We identified in ground (a) a procedural error by the trial judge in the timing of his decision to admit into evidence the confessional statement and record of interview of the first appellant. His Honour admitted the documents into evidence during the verdict, whereas he ought to have decided on their admission during the voir dire or at some other time before the close of State’s case. This ground addresses the merits of the decision to admit these documents into evidence. 

26.	We are not persuaded that there was any error. His Honour assessed the evidence of the police witnesses, which was that the first appellant was apprehended on 13 December 2016 at his house at Gerehu and taken to the CID office at Boroko police station, where the next day he admitted participating in the Tropicair robbery. A confessional statement was prepared for him, however he elected not to sign it until he had seen a lawyer. 

27.	His Honour assessed the evidence of the first appellant and his claims of being taken to a place outside the city and badly assaulted, as not credible.

28.	His Honour regarded the police witnesses as witnesses of truth and concluded that neither the confessional statement nor the record of interview was fabricated. No error apart from the timing of the decision was made in his Honour’s decision to admit those documents into evidence. Ground (e) is dismissed. 

(f)   Failing to give ruling on no-case submission

29.	It was an unusual aspect of the trial that the judge allowed the defence to make a no-case submission, to which the State responded, but then ruled that he could not make a ruling on it. We agree with the first appellant that that was not the proper course of action to take. 

30.	We appreciate the difficulty faced by the trial judge and agree that the no-case submission appeared to be ill-timed, having been made after the first appellant had given evidence during the voir dire of the alleged fabrication of his confessional statement and record of interview. However, a no-case submission is an important part of criminal practice and procedure. A failure to allow a no-case submission will almost always be regarded as an irregularity, though not necessarily a material one (Joshua Yaip Avini & Plaridel Nony Acosta v The State [1997] PNGLR 212). Allowing a no-case submission to be made, but then not ruling on it must be similarly treated: it is an irregularity, but not necessarily a material one.

31.	His Honour’s failure to give a ruling on the no-case submission was not the correct position at law. His Honour ought to have ruled on it. This was a procedural error of law on the part of the trial judge. Ground (f) is upheld. 

Summary re first appellant

Grounds of appeal (a) and (f) are upheld. Grounds (b) to (e) are dismissed. 

SECOND APPELLANT, JASON YVIA KAWI

(a) Failing to give a ruling on the voir dire

32.	We uphold this ground of appeal for the same reasons the same ground of appeal was upheld in the case of the first appellant. Having correctly observed that the appellant’s evidence should be deemed to be given in the trial proper due to the objection to the confessional statement and record of interview being primarily based on the argument that those documents were fabrications, his Honour ought to have admitted the confessional statement and record of interview into evidence and indicated that the weight if any to be attached to them would depend on an assessment of all the evidence in the trial. A procedural error was made. Ground (a) is upheld. 

(b) Using the confessional statements of the co-accused against each other in the absence of corroboration

33.	We dismiss this ground of appeal for the same reasons the same ground of appeal was dismissed in regard to the first appellant. The trial judge did not use the confessional statements of co-accused against the second appellant as he was found guilty based on his confessional statement and record of interview.

(c) Improperly admitting into evidence the record of interview and confessional statement

34.	We dismiss this ground of appeal for the same reasons the same ground of appeal was dismissed in regard to the first appellant. The trial judge made a considered assessment of the credibility of the evidence of the police witnesses, weighed against the credibility of the evidence of the accused and determined that there was no fabrication. Ground (c) is dismissed. 

(d)   Failing to give ruling on no-case submission

35.	We uphold this ground of appeal for the same reasons the same ground of appeal was upheld in regard to the first appellant. His Honour erred in failing to give a ruling on the second appellant’s no-case submission.

Summary re second appellant

36.	Grounds of appeal (a) and (d) are upheld. Grounds (b) and (c) are dismissed. 

THIRD APPELLANT, ALPHONSE LANCE MOHA

(a) Improperly admitting into evidence the confessional statement, which was induced by a promise to be released from custody

37.	The trial judge accepted the evidence of the police witnesses that no force was applied or pressure put upon the third appellant to make a confession. His Honour also accepted the evidence of the police witnesses that the idea of the third appellant making a confession and signing it and then being released from custody was the third appellant’s. His Honour also accepted evidence of an agreement between the police and the third appellant that once the third appellant signed the statement, he would be released on condition that he makes his own informal inquiries to find out who else was involved in the robbery and reports back to the police in a few weeks’ time when he would be formally interviewed. His Honour also accepted evidence that after he was released from custody the third appellant went missing for a considerable period and did not report back as agreed and instead was located in Kokopo and had to be re-arrested. 

38.	We find no error in those findings of fact by the trial judge. However, we agree with the third appellant’s argument that the existence of the agreement between the police and the third appellant meant that there was an inducement offered by persons in authority to the third appellant, which led to the making and signing of the confessional statement, and the inducement was not removed. This meant that the confessional statement was not made in the exercise of a free choice to speak or remain silent (McDermott v R (1948) CLR 501, The State v August Toiamia (1978) N145, The State v Canute Rambio (1983) N410).

39.	As the accused gave evidence that he did not make the statement voluntarily, the onus was on the State to prove beyond reasonable doubt that the statement was made voluntarily (The State v Linus Rebon Dakoa (2009) N3586). We find that the only proper ruling on the evidence was that that onus was not discharged. This rendered the confessional statement inadmissible under s 28 of the Evidence Act, which states:

A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown. [Emphasis added.]

40.	We find that the trial judge erred in admitting the confessional statement into evidence. Ground (a) is upheld.

(b) Basing conviction on confessional statement and record of interview, which revealed only that the appellant had procured the stolen vehicle used in the robbery, not that he was the driver of that vehicle as alleged by the State

41.	It is correct that the confessional statement and record of interview only revealed that the third appellant had procured the stolen vehicle and did not support the proposition that he was the getaway driver. However, there was sufficient evidence in the confessional statement, if it was admissible evidence, on which to convict the third appellant. Though it was part of the State’s case that the third appellant was the getaway driver, it was not a critical part of its case. Conviction of the third appellant was not dependent on proof that he drove the getaway vehicle. Ground (b) is dismissed. 

(c)    Failing to distinguish between the appellant procuring the vehicle and his driving the vehicle

42.	This ground is based on a false premise: that the trial judge did not fail to distinguish between whether the third appellant was the driver or only the procurer of the getaway vehicle. His Honour in fact made that clear distinction in the verdict by stating that the State had not proven that he was the driver but had proven beyond reasonable doubt that he was the procurer of the vehicle and a pistol, both of which were used in the robbery, and this was sufficient to be convicted under s 7(1) of the Criminal Code. Ground (c) is dismissed.

(d)   Failing to give ruling on no-case submission

43.	We uphold this ground of appeal for the same reasons the same ground was upheld in regard to the first and second appellants.

Summary re third appellant

44.	Grounds of appeal (a) and (d) are upheld. Grounds (b) and (c) are dismissed. 

CONCLUSION

45.	We have upheld two grounds of appeal for each appellant. As to the consequences of this, it is necessary to consider the case of each appellant in the context of two key provisions of the Supreme Court Act, ss 23 and 27.

46.	Sections 23(1), (2) and (3) (determination of appeals in ordinary cases) state:

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

(a)	the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b)	the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c)	there was a material irregularity in the course of the trial, 

and in any other case shall dismiss the appeal.

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

(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.

47.	The combined effect of those provisions is that the Supreme Court should uphold an appeal if any of ss 23(1)(a), (b) or (c) apply, unless s 23(2) applies, that is, it considers that no miscarriage of justice has actually occurred, in which case it may dismiss the appeal. If it thinks that none of ss 23(1)(a), (b) or (c) applies, it must dismiss the appeal (Ilai Bate v The State (2012) SC1216).

48.	If the Court upholds an appeal against conviction, it must quash the conviction and either (i) direct a verdict of not guilty be entered or (ii) order a new trial. These options arise due to the combined effect of ss 23(3) and 28 (new trial), which states:

(1)	If on an appeal against conviction, the Supreme Court thinks that—

(a)	a miscarriage of justice has occurred; and
(b)	having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,

the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.

(2)	Where a new trial is ordered, the Supreme Court may make such order as it thinks proper for the safe custody of the appellant or for admitting him to bail.

49.	Guidelines as to how the discretion whether to order a new trial should be exercised are provided by the Supreme Court’s decisions in Charles Ombusu v The State [1997] PNGLR 699 and Fred Bukoya v The State (2007) SC887, which adopted the considerations set out by Bredmeyer J in Oscar Tugein v Michael Gotaha [1984] PNGLR 137. The Court should take into account:

(a)	the public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders by the trial judge in the conduct of the trial;

(b)	the expense and inconvenience to witnesses who would be involved in a new trial when weighed against the strength of the evidence;

(c)	the seriousness and prevalence of the particular offence;

(d)	the consideration that the criminal trial is an ordeal which the accused ought not to be condemned to go through for a second time through no fault of his own unless the interests of justice require that he should do so;

(e)	the length of time elapsing between the offence and the new trial if ordered; and

(f)	the strength and availability of the evidence.

First appellant 

50.	As to s 23(1(a), despite errors of law being made regarding the timing of the decision to admit into evidence the confessional statement and record of interview and the failure to rule on the no-case submission, we do not think that under all the circumstances of the case the verdict of guilty should be set aside on the ground that it is unsafe and unsatisfactory. 

51.	There was an element of confusion as to the state of the evidence at the time submissions on verdict were made, but we consider that it was manageable on the part of defence counsel. The critical issue was whether the confessional statement and/or the record of interview were fabricated. Defence counsel had every opportunity to make submissions on that point. Similarly, even though the trial judge erred in not ruling on the no-case submission, it was an irregularity only.

52.	We have found that there was no error of law in the merits of the decision to admit the confessional statement and record of into evidence or in the decision to regard them as genuine and not fabricated and being made voluntarily. They were properly relied on by the trial judge in reaching the guilty verdict. We are satisfied that there is in all the circumstances no reasonable doubt as to the safeness or satisfactoriness of the verdict (John Beng v The State [1977] PNGLR 115, Stanley Poke v The State (2010) SC1055). Section 23(1)(a) does not apply.

53.	As to s 23(1)(b) there were no other wrong decisions on other questions of law.

54.	As to s 23(1)(c) there were irregularities as to the timing of the decision to admit into evidence the confessional statement and record of interview and the failure to rule on the no-case submission. However, the irregularities were not material. 

55.	Therefore, none of ss 23(1)(a), (b) or (c) apply. This means the appeal will be dismissed. If we took a different view on any of those provisions, we would invoke s 23(2) and find that no miscarriage of justice has actually occurred.

Second appellant

56.	The position of the second appellant is the same as that of the first appellant. As to s 23(1)(a), despite errors of law being made as to the timing of the decision to admit into evidence the confessional statement and the record of interview and the failure to rule on the no-case submission, under all the circumstances of the case the verdict of guilty should not be set aside on the ground that it is unsafe and unsatisfactory. As to s 23(1)(b) there were no wrong decisions on other questions of law. As to s 23(1)(c) there were irregularities as to the timing of the decision to admit into evidence the confessional statement and record of interview and the failure to rule on the no-case submission; however, they were not material. Therefore, none of ss 23(1)(a), (b) or (c) apply and the appeal will be dismissed. If we took a different view on any of those provisions, we would invoke s 23(2) and find that no miscarriage of justice has actually occurred.

Third appellant

57.	As to s 23(1)(a), an error of law was made in admitting the confessional statement and the record of interview into evidence. It was a serious error and under all the circumstances of the case we consider that the verdict of guilty should be set aside on the ground that it is unsafe and unsatisfactory. As to s 23(1)(b) there was a wrong decision on a question of law. As to s 23(1)(c) there was no other material irregularity in the trial. As ss 23(1)(a) and (b) apply, the appeal must be upheld unless we find that no miscarriage of justice actually occurred. We are unable to make that finding. A miscarriage of justice occurred. The conviction must be quashed. Do we direct a verdict of not guilty or order a new trial? Applying the considerations from Tugein, we consider that a new trial would still mean that the confessional statement and record of interview could not be relied on to support a conviction. There was insufficient other evidence against the third appellant, so a new trial would be unlikely to result in a guilty verdict. We will direct the entry of a not guilty verdict. 

ORDER

(1)	The appeals by the first appellant, Donald Joe Steven, and the second appellant, Jason Yvia Kawi, are dismissed and their convictions are affirmed.

(2)	The appeal by the third appellant, Alphonse Lance Moha, is upheld and his conviction is quashed and a not guilty verdict is entered and, subject to any other process or order authorising his detention, he shall be discharged from custody forthwith.
_________________________________________________________________
Public Solicitor:  Lawyer for the Appellants 
Public Prosecutor:  Lawyer for the Respondent