Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Kilip v State [2023] PGSC 58; SC2403 (2 June 2023)

SC2403

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 74 OF 2018

BETWEEN:
STANLEY KILIP
Appellant

AND
THE STATE
Respondent

Waigani: Salika CJ, Kassman & Berrigan JJ
2023: 29^th May, 2^nd June

CRIMINAL LAW – Practice and Procedure – Charge of Wilful Murder – Alternative verdict of Murder – Element of intention not made out - Issue of Identification does not arise – Inconsistencies between State witnesses taken into account - Inconsistencies did not affect the issues in dispute.

CRIMINAL LAW – Practice and Procedure – Sentence imposed by the National Court for Murder within range.

Cases Cited:
Manu Kovi v The State [2005] PGSC 34; SC789
John Beng v The State (1979) PNGLR 115
Bake v The State (2012) PGSC 46; SC1216
Glen Otto Kapahi v The State (2002) SC1023
Mauriel v The State (2018) SC1732
Norris v The State [1979] PNGLR 605
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698

Counsel:
Mr N. Hukula, for the Appellant
Mr R. Luman, for the Respondent

2 June, 2023

1. BY THE COURT: INTRODUCTION: The appellant was convicted on 18 May 2018 by the National Court on a charge of murder. He was charged with wilful murder but convicted on an alternative verdict of murder under s. 300 of the Criminal Code Act and sentenced to 25 years imprisonment on 13 December 2018.
   
2. He initially filed an appeal in person on 19 December 2018 which was subsequently amended. The amended notice of appeal was filed on 5 November 2019 against both conviction and sentence. On 31 October 2022, Cannings J granted leave to appeal against sentence.
   

FACTS

3. There was a policewomen’s fundraising dance held at Sports Inn Club, Sir John Guise Drive at Waigani on the night of Saturday 6^th February 2016. Robert Giwar (“deceased”) attended that party in the evening. Between 4.00 am and 5.00 am on Sunday 7^th February 2016, a fight broke out which caused everyone to leave the Club. The appellant was standing outside the main gate to the Club when the deceased walked out. The appellant approached the deceased from behind and punched the deceased on the back of the head, causing the deceased to fall down on to the cement pathway near the gate entrance. Whilst the deceased was on the cement pathway, the appellant used a wheel spanner to hit the deceased several times on the neck and head. After that the appellant kicked the deceased on the head using the police issue GP boots he was wearing. The appellant got on a vehicle and left after assaulting the deceased. The deceased lay motionless before he was taken to Port Moresby General Hospital for medical assistance, but died as a result of the injuries he sustained.
   

GROUNDS OF APPEAL

4. Initially the appellant himself filed an appeal against conviction only.
   
5. On 5 November 2019, an amended Notice of Appeal was filed by Mawa Lawyers pursuant to a Court Order of 23 October 2019. This notice of appeal was against conviction and sentence. However, that appeal against sentence was without leave.
   

THE LAW

6. The appeal against conviction lies without leave and is brought pursuant to Section 4 (2) (b), 6 (2) and 22 (b) of the Supreme Court Act, in that it raises issues of mixed fact and law.
   

GROUNDS OF APPEAL

7. The appellant raised 16 grounds of appeal but counsel for the appellant condensed those to just three. They are:
   
   • (i) Unsatisfactory identification of the appellant as the assailant of the deceased.
   • (ii) Numerous inconsistencies between the evidence of the State witnesses which raised reasonable doubt.
   • (iii) Failure to state the elements of the charge of murder.
     

ADDRESSING THE GROUNDS OF APPEAL

(1) UNSATISFACTORY IDENTIFICATION OF APPELLANT AS THE ASSAILANT OF THE DECEASED ROBERT GIWAR.

8. On this ground, the appellant submitted that the State witnesses Luxey Lirupu and Vincent Tamengo were so drunk that they did not properly and positively identify the appellant as the person who assaulted Robert Giwar.
   
9. He further submitted that the State witness Aaron Jack was not only drunk, but that he was implicated as being the man who assaulted Robert Giwar.
   
10. He submitted that the State’s only sober and independent witness was John Thomas whose evidence was that the person who assaulted Robert Giwar was “short, fat and light-skinned and that the person was right-handed” and holding a single wheel spanner in his right hand when he assaulted the deceased.
    
11. He further submitted that John Thomas in cross-examination changed that story and said the assailant of the deceased was tall and brown or dark in colour.
    
12. His submission in summing up all the State witnesses’ evidence on this ground was that given the inconsistencies in the State’s evidence, a reasonable doubt was established as to who assaulted the deceased.
    
13. The State’s response to the contention of the appellant is that: the learned trial judge did acknowledge the discrepancies of the evidence of the State witnesses Luxey Liripu, Vincent Tamengo, John Thomas and Jack Aaron but held that the discrepancies were not material to the issue of identification and the appellant’s participation, in that this was not an all-out brawl or group fight, and there was only one assailant, and that assailant was the appellant.
    
14. The State further submitted that all its four witnesses saw and said the same thing, that is, they saw the appellant assault the deceased, which was the critical evidence.
    

RULING ON GROUND OF IDENTIFICATION

15. The State witnesses Luxey Liripu, Vincent Tamengo and Aaron Jack all knew the accused. They are all policemen based at Gordons Police Station. The appellant is also a policeman and based at the same police station. There was more than one witness who identified the appellant. Moreover, this is not a case of stranger witnesses identifying a stranger assailant, rather it was a case of mutually known witnesses identifying a known assailant.
    
16. The appellant did not raise an alibi to suggest he was elsewhere. Rather, he gave evidence and admitted he was present at the scene of the crime but says he did not assault the victim. The State witnesses identified him as the only person who assaulted the deceased.
    
17. The appellant’s submission is that all the State witnesses who identified him were so drunk that they could not have positively identified him as the assailant of the deceased. The appellant himself was drunk by then and he never saw anyone else assault the deceased. If he did not, who did? He was silent on that in evidence.
    
18. The appellant relied on the proposition advanced in the Supreme Court authorities of John Beng v The State (1979) PNGLR 115 and Bake v The State (2012) PGSC 46; SC 1216. In John Beng, a defence of alibi was raised and the person making the identification did not know John Beng. The circumstances of the identification in that case were different in that the lighting was poor and there was a crowd at the gathering where the purported identification was done. The Court there was of the view that the identification time was very short and that it was a case of a “fleeting glance”.
    
19. The circumstances of identification in this instance are different and as such this case is distinguished from the John Beng case on its facts.
    
20. The appellant also relied on the statement of the Supreme Court in Bate (supra) where that Court said:
    

“In assessing identification evidence, relevant considerations include: that an honest witness can be mistaken and still be convincing; that an identification witness must be both honest and accurate; whether the evidence is corroborated; whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused; the emotional state of the witness at the time of the incident; the prevailing conditions; the line of sight (John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 applied).”

21. The instant case involves 3 eye-witnesses all of whom knew the appellant and all of whom identified the appellant as the perpetrator. They corroborated each other. The appellant admitted he was present at the scene. That is some corroboration in itself by the appellant. The appellant knew the three State witnesses. This was not a case of a mistaken identity. The facts in Bate are distinguishable from the instant case. There was no need or requirement for the learned trial judge to warn himself of convicting on uncorroborated evidence as there was a lot of corroboration. In all, identification was a non-issue on trial. The learned trial judge did not err in law or fact in dealing with the issue of identification. Accordingly, this ground has no merit and is dismissed.
    

RULING ON GROUND OF INCONSISTENCIES.

22. The inconsistencies identified by the appellant and his counsel are that the trial judge:
    
    1. Disregarded obvious discrepancies material to the identification and participation of the assailant.
    2. Contradicted himself by accepting the only sober witness’ evidence to implicate the appellant.
    3. Disregarded evidence that implicated Aaron Jack as the perpetrator of the crime.
    4. Failed to mark the distance between the perpetrator and the witnesses who did the identifying.
    5. Failed to assess and consider the state of mind of the witnesses whether they were qualified to make any identification.
    6. Failed to caution himself of the danger of convicting, given the circumstances.
    7. Failed to address the quality of visibility.
    8. Questioned the accused’s right to remain silent in his record of interview.
    9. Convicted for murder in the without proof of intention to cause grievous bodily harm.
       
23. The appellant submitted that there were numerous inconsistencies in the evidence of all the State witnesses Luxey Liripu, Vincent Tamengu, John Thomas and Aaron Jack and that when all those inconsistencies are read together a reasonable doubt is established. He relied on the Supreme Court authorities of Glen Otto Kapahi v The State (2002) SC 1023 and Mauriel v The State (2018) SC 1732, which say that:
    

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

24. With respect, we agree with that statement of the law and say that the learned trial judge did in this case deliberately turn his mind to the inconsistencies and said:
    

“There are obviously some discrepancies in the prosecution’s case but I am of the view that those discrepancies are not material to the issue in question, the question of identity or participation.”

25. The learned trial judge on page 139 of the Appeal Book, line 10, discussed the discrepancies of the evidence of John Thomas and stated his reasons for accepting his evidence as against the appellant’s.
    
26. His Honour expressly considered the nature and location of the assaults as described by the witnesses and found that this was consistent with the medical evidence.
    
27. In relation to lighting, His Honour found that he was satisfied that there was enough lighting.
    
28. His Honour found that there was no intention to kill but that the injuries the deceased died from evidenced an intention to cause grievous bodily harm and found the appellant guilty of murder as an alternative verdict.
    
29. We are of the view that the findings of the learned trial judge were open on the evidence before him. He observed the witnesses and assessed their evidence as against that of the appellant. He accepted the State witnesses’ version and rejected that of the appellant, finding that the incident was not a group fight but an assault by a single person against another single person.
    
30. In the circumstances, we find the learned trial judge did not err in law or fact and find that the entire appeal on this ground is without merit.
    

RULING ON GROUND OF FAILURE TO STATE THE ELEMENTS OF THE OFFENCE OF MURDER

31. Counsel for the appellant withdrew this ground of appeal. Counsel saw this ground as having no merit and withdrew it. With respect, the Court accepted counsel’s decision to withdraw this ground of appeal.
    
32. The end result in relation to this ground of appeal is that it is dismissed in its entirety.
    
33. Accordingly, the appeal against conviction is dismissed.
    

APPEAL AGAINST SENTENCE

34. The grounds of appeal on sentence are that:
    
    1. The learned trial judge erred in fact and in law in giving very little or no reason at all for his decision to award a sentence of 25 years imprisonment with hard labour.
       
    2. The learned trial judge erred in fact and in law in that he did not consider the appellant’s submission in mitigation and only considered the State lawyer’s submissions.
       
35. Counsel for the appellant submitted that the instant case fell between the upper end of Category 2 and mid-range of Category 3 under the Manu Kovi case precedent. Category 3 under Manu Kovi attracts the sentence range from 20 years to 30 years imprisonment. The mid-range of Category 3 is therefore 25 years.
    
36. The Supreme Court in Norris v The State (1979) PNGLR 605 said that in order to disturb the sentence of the trial Court, the appellant must show that the learned trial judge fell into error in exercising his sentencing discretion, and that such error has the effect of vitiating the sentence. This test has stood for 42 years so far and this Court is not about to change the test.
    
37. Counsel for the appellant conceded the sentence of 25 years imprisonment was within the range of sentences imposed for murders going by the Manu Kovi precedent and left it to the discretion of the Court. We consider the sentence of 25 years fell within the range of sentences for this type of murder. Accordingly, the appellant has failed to establish any error on the part of the learned trial judge warranting our intervention.
    
38. In the end result, the appeal against sentence is also dismissed.
    
39. The appeals against conviction and sentence are accordingly dismissed. The conviction by the National Court on 30 May 2018 and the sentence of 25 years imprisonment imposed on 13 December 2018 are affirmed.
    

Orders accordingly.

________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent