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Risipu v Independent State of Papua New Guinea [2024] PGSC 130; SC2664 (27 November 2024)

SC2664

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 56 & 57 OF 2022

BETWEEN:
FRANK RISIPU & ELIZAH RONNY ANGI
Applicants

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kimbe: Kariko, J; Narokobi, J; Coates, J
2024: 27^th November

SUPREME COURT – Review & Appeal –Trial - Murder convictions – Claim that evidence contradictory and inconsistent – Football brawl – Claim that only one witness saw one of the defendants at scene of assault – Claim that such evidence then was contradictory and inconsistent – trial judge makes decision upon basis of Beyond Reasonable Doubt – Review dismissed – Convictions affirmed

Facts

The appellants were convicted of murder under s 300 of the Criminal Code, after a brawl at a soccer match. They claimed that the verdict was based on contradictory and inconsistent evidence wrongly taken into account.

Held
Evidence in a criminal trial may or may not be contradictory or inconsistent, however, that is not the test for the decision-making process. A judge being the finder of fact weighs the evidence and makes a determination judicially as to the facts, applying the Beyond Reasonable Doubt test. In this matter, the evidence said to be contradictory and inconsistent was not identified.

Cases Cited:
Ambrose Lati v The State (2015) SC1413
Avia Aihi v The State (No 2) [1982] PGSC 8; PNGLR 44
John Beng v The State [1977] PNGLR 115

Counsel:
N Hukula & N Loloma, for the Applicants
H Roalakona & S Mosoro, for the Respondent

27^th November 2024

1. BY THE COURT: This matter comes before the Supreme Court after leave was granted to have convictions for murder reviewed.
   
2. There was no application to review sentence.
   
3. The appellants were convicted of the murder of Isaac Vitilis Dilu on 3 September 2021 and were each sentenced to imprisonment on 25 November 2021.
   
4. Frank Risipu was sentenced to 15 years and Elijah Ronny Angi was sentenced to 12 years, after trial.
   
5. The grounds for review are that two state witnesses gave contradictory evidence and inconsistent evidence.
   
6. The appellants were severally arraigned with a third person Sebastian Tony Akui, who has fled and did not appear at trial, although he was convicted in his absence.
   
7. The murder count was laid under s.300 (1)(b) of the Criminal Code.
   
8. The section allows for murder where the offender intended to do grievous bodily harm.
   
9. The background to the murder convictions arose after a soccer match between teams called Brothers and Nonstop.
   
10. The appellants were players for Nonstop.
    
11. A fight occurred upon the full-time match hooter sounding and facts found at trial were that the appellants attacked Brothers player Isaac Vitilis Dilu.
    
12. The deceased died after being hit in the back of the head with a brick.
    
13. The convictions depended on identification evidence.
    
14. There was direct evidence that Frank Risipu picked up a brick and hit the deceased on the head causing him to fall and collapse. He died next morning in hospital.
    
15. That evidence came from Greg Buka a player, and Peter Mais, a linesman.
    
16. In written submissions, after considering the trial transcripts and judgment, the defence submitted that the conviction of Mr Risipu was safe.
    
17. The position of appellant Angi is said to be in a different category.
    
18. The defence contended that state witnesses Greg Buka and Peter Mais gave contradicting and inconsistent evidence about Angi’s involvement and that the trial judge was wrong in law to accept the evidence as being the basis for his culpability.
    
19. In considering this review, there was no point taken that the court lacked jurisdiction, see Avia Aihi v The State (No 2) [1982] PGSC 8 PNGLR 44.
    
20. In considering the appeal, the law to be applied, as accepted in a number of cases, is that to succeed on an appeal against conviction the appellant must demonstrate that the verdict was unsafe and unsatisfactory, that the conviction entailed a wrong decision on a question of law or that there were material irregularities so that the court is satisfied that a miscarriage of justice has occurred, see John Beng v The State [1977] PNGLR 115; Ambrose Lati v The State (2015) SC 1413 and Section 23, Supreme Court Act.
    
21. Before going to the inconsistencies and contradictions, His Honour in his reasons referred to the need for caution in accepting identification evidence, that such had to be sufficiently corroborated to establish correctness of identification and that observations were precise and accurate.
    
22. Now to the challenged evidence.
    
23. Witness Greg Buka gave evidence that he and Sebastian Tony Akui had both jumped at a high-flying ball during the game, to head the ball, that is to hit the ball with the head. In so jumping they collided, Mr Akui suffering a cut lip. He called for the referee to award a penalty, but the final hooter sounded and the game was ended.
    
24. Mr Buka said he apologised to Mr Akui and walked with him towards the Nonstop team to shake hands.
    
25. His evidence was that Mr Akui then shouted and swore at the Brothers’ team players and ran back onto the field, and the two appellants and another player Jonah Jeffrey Nalo ran onto the field following him and they all charged towards the deceased.
    
26. Mr Buka gave evidence of seeing Sebastian Akui run to a player named Andy and punch him but that fight was stopped.
    
27. He said a little later he saw Sebastian Akui run towards his team members, with Frank Risipu, Jonah Jeffrey Nalo and Elijah Ronny Angi following, where they confronted the deceased.
    
28. He said that Frank “was the first to throw punches on – fight with Isaac [the deceased], and Isaac punched him on his mouth and he fell”, meaning Frank Risipu fell.
    
29. He said the deceased then got into a fight with Sebastian Akui and Frank Risipu came from the deceased’s other side. He said he saw him get a brick and hit the deceased on the head.
    
30. He said he saw him fall.
    
31. The evidence was that he made the observation from about six metres.
    
32. He said Jonah Nalu hit the deceased with an umbrella on his collarbone.
    
33. Of appellant Elijah Ronny Angi, Mr Buka in describing the assault with the brick on the deceased, said this in evidence: “At the same time, I saw Elijah Ronny swing a leg on him. Question - Sorry what? Answer - A leg. Question - He kicked him? Answer - Kicked him, after they saw he was hurt, the three persons ran away”.
    
34. That part of the evidence indicating Mr Angi’s role was delivered without prompting.
    
35. He said Frank Risipu was left standing with a brick in his hand, which was later removed by Peter Mais and Duep Aaron.
    
36. Mr Peter Mais, a linesman, also gave evidence.
    
37. His evidence was that he saw the deceased hit by Frank Risipu with a brick. He said he saw him go to the fence and pick up the brick.
    
38. He said he saw him run back from the fence and hit the deceased with the brick.
    
39. He said he saw Sebastian Akui punch and kick the deceased.
    
40. He said there was another fight also going on as well.
    
41. When asked if he saw Elijah Ronny Angi, at the scene where the deceased was hit with the brick, he answered “No”.
    
42. This is what is said to be the inconsistent and contradictory evidence the review and appeal are based upon.
    
43. However, as identified during the hearing, when the transcript referring to this answer is read in context, the evidence is that appellant Angi had been at the scene but had been dragged away into another fight.
    
44. Evidence which is inconsistent or contradictory often occurs in a trial.
    
45. It occurs because people see different things from different viewpoints.
    
46. The case seemingly being made out is that as Peter Mais did not see Mr Angi kick as described by Greg Buka, or see him at all at the scene of the assault, then it is one where the trial judge should have weighed the evidence and found in favour of the accused.
    
47. But applying a test in that way is out of step with how a trial judge makes a decision in a criminal trial, which is that the judge has to conclude beyond reasonable doubt that the offence, being made up of all necessary elements, occurred.
    
48. In weighing evidence, in order to accept evidence as being beyond reasonable doubt or not, the judge as fact finder, as is a jury in those jurisdictions which rely on juries, exercises a discretion as to what evidence is accepted and what evidence is rejected.
    
49. Where a judge alone makes such a decision, the exercise of the discretion is often seen in the reasons for judgment, although that is not always the case.
    
50. His Honour had heard the evidence, including the brief evidence of the appellants in denying the assault on the deceased.
    
51. Of the appellant Angi, His Honour stated: “You, prisoner Elijah Angi, you joined in and attacked the deceased whilst he was lying on the ground....you were generally involved in the group that attacked the deceased”.
    
52. It is clear from that wording that His Honour had accepted the evidence of Mr Buka, who said he saw Mr Angi attack the deceased, which means, by inference, he had also considered the evidence of Mr Mais who did not see Mr Angi.
    
53. There is no contradictory or inconsistent evidence – there is simply a consideration of all of the evidence relevant to the attack on the deceased, and a finding made.
    
54. The decision of His Honour cannot be taken further, without further particularisation of the alleged inconsistencies and contradictions being put so that it could be understood how the verdict was unsafe and unsatisfactory, or that the conviction entailed a wrong decision on a question of law or that there were material irregularities so that the court could be satisfied that a miscarriage of justice has occurred.
    
55. On that basis, we dismiss the review applications filed 1 March 2024 and uphold the National Court’s convictions.
    

ORDER

1. The applications for review filed on 1 March 2024 are dismissed.
2. The convictions of the National Court are affirmed.

Judgment accordingly.
_______________________________________________________________
Public Solicitor’s Office: Lawyers for Applicants
Public Prosecutor’s Office: Lawyers for Respondent