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Olmi v The Independent State of Papua New Guinea [2024] PGSC 28; SC2559 (26 April 2024)

SC2559

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 32 OF 2019

BETWEEN:
ARE KONE OLMI
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mt Hagen: Toliken J, Polume-Kiele J, Dingake J
2024: 22^nd, 26^th April

JUDICIAL REVIEW - Application for review of conviction and sentence – review of sentence abandoned – conviction – whether conviction unsafe and unsatisfactory – involvement and application of Section 7 & 8 of the Criminal Code – inconsistencies in the State’s evidence – no errors by the trial judge found – Court satisfied that the conviction was safe – held – conviction upheld – review dismissed – Constitution, s 155 (2)(b); Supreme Court Act, s 23.

Cases Cited:
Kapahi v. The State [2010] 2 PNGLR 301
John Beng v The State [1977] PNGLR 115
Doni Kakivi and 88 Others v The Independent State of Papua New Guinea (2023) SC2539
Yanduo v The State (2023) SC2354
Kanukanu v The State (2020) SC1913
Rex Paliau, Brian Paliau, Emmanuel Paliau & Elijah Kilach v The State (2016) SC1537
David v The State (2006) SC881

Counsel:
D. Pepson with J. Bibilo, for the Applicant
J. Kesan, for the Respondent

26^th April 2024

1. BY COURT: This is a review against the decision of the National Court, handed down on the 15^th of March 2019, in which the Court convicted the Applicant of the offence of Wilful Murder under Section 299 (1) of the Criminal Code.
   
2. Initially the Applicant had also appealed against sentence, but this was abandoned during the hearing of the review.
   
3. The dispositive facts of the review turn on a narrow compass and are largely common cause.
   
4. On or about the 15^th of August 2018, the Applicant was indicated with two (2) counts of Wilful Murder contrary to Section 299 (1) of the Criminal Code.
   
5. In Count one, the State alleged that the Applicant on the 16^th day of April 2013, at Kuidilma village, Gumine in Papua New Guinea wilfully murdered Norbert Sil, an adult male.
   
6. In Count two, the State alleged that the Applicant on the 16^th day of April 2013 wilfully murdered Angela Sil, an adult female.
   
7. The Applicant pleaded not guilty to the charges preferred against him and a trial was held.
   
8. The State called three (3) witnesses to prove its allegations against the Applicant.
   
9. The evidence of the State, cumulatively, established that on the 16^th of April 2013, the Applicant, Kone Olmi, was at Kuidilma village in Gumine District, Chimbu Province.
   
10. The Applicant and his family members were at the village attending a funeral service. The two (2) deceased persons were also in attendance with their family members.
    
11. During the funeral of the relative the Applicant (accused) blamed the family of the two (2) deceased persons for causing death of their family member.
    
12. The evidence of the State also shows that a fight ensued between the two (2) families and that the Appellant’s family members were armed with sticks, stones, bush knives and axes when they attacked the family members of the deceased persons. In the ensuing attack two (2) persons were killed.
    
13. The bodies of the deceased persons were dumped into a toilet pit and were discovered the next day when the Police attended to the incident.
    
14. The Applicant was charged and convicted of wilful murder and sentenced to thirty (30) years imprisonment, fifteen (15) years for each count of wilful murder, to be served cumulatively. The Court deducted four (4) years and four (4) months from the sentence imposed, resulting in a sentence of twenty-five (25) years and eight (8) months to be served by the Applicant.
    
15. The Applicant being aggrieved by the decision of the Court below seeks to overturn and or quash the said decision on the grounds that the Court did not consider the State witnesses evidence and that the sentence of twenty-five (25) years imposed by the Court is manifestly excessive.
    
16. On a proper assessment of the grounds the only issue before this Court is whether the Court below erred in law or fact in convicting the Applicant and sentencing him to twenty-five (25) years imprisonment as indicated earlier.
    
17. Before us the Applicant appeared to rely heavily on the case of Rex Paliau, Brian Paliau, Emmanuel Paliau & Elijah Kilach Paliau v The State (2016) SC 1537, in arguing that the conviction was unsafe.
    
18. According to Counsel for the Applicant, the Court below misapplied the law when it failed to address or pinpoint which part of Section 7 of the Criminal Code was applicable to the conduct of the Applicant.
    
19. On the evidence, we accept that the learned trial judge did not pinpoint where exactly the Applicant fitted in the commission of the offence, namely, whether he was guilty under Section 7 1(a), (b), (c) or (d) of the Criminal Code or not.
    
20. On evidence, however, the Applicant had shouted, kill him. It is beyond dispute that he actively encouraged the killing of another person, and it matters not who delivered the fatal blow as the law in such circumstances, consider him a co- principal offender.
    
21. We also consider that this case is distinguishable from the case Paliau (Supra) to the extent that in Paliau there was one victim and in this case, they were two.
    
22. The law in this jurisdiction is clear that this Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before it can allow the appeal (Section 23 of the Supreme Court Act; John Beng v The State (1977) PNGLR 115.)
    
23. We have carefully assessed the totality of the evidence and we are satisfied that despite the learned judge not indicating which part of Section 7 applies to the Applicant, the conviction is safe.
    
24. It is common cause that the State invoked Section 7 and 8 of the Criminal Code at the trial and the Applicant’s conduct of actively encouraging the killing of Angel Sil, makes him criminally liable for the offence as the Court below correctly found. It is clear on the evidence that this was a group attack and the Applicant, an active participant of the group.
    
25. In the recent case of Doni Kakivi and 88 Others v The Independent State of Papua New Guinea SC 2539 the principles relating to sections 299 (1), 7 and 8 of the Criminal Code were elaborately discussed and the Court emphasized that under section 7 of the Criminal Code, where an accused is an active participant in the commission of an offence, by encouraging others to attack the deceased, such a person becomes a co-principal offender.
    
26. The other issue raised by the Applicant concerns inconsistencies in the State’s evidence. These stem from the State’s third witness Markus Mintai’s evidence. His evidence deviates from the evidence of the first and second witnesses who both testified that it was the Applicant who chopped the deceased’s leg. Mintai’s evidence departs from the evidence of the other witnesses in two significant ways.
    
27. The third witness said that the Applicant was left behind with others at a landslip along the road which had prevented the truck carrying the coffin of the deceased relative of the Applicant while he (witness) and a couple of others proceeded to the village with the body in a Toyota Hilux. Secondly, it was Waiti Kerua who cut the deceased and not the Applicant and there was also the involvement of another person by the name of Äre Kone Maima.
    
28. The Applicant contends that the primary judge failed to reconcile these inconsistencies and instead treated them as trivial.
    
29. It is settled that where there are inconsistencies in the State’s evidence, the trial judge must identify them, assess their significance, and give reasons for regarding them as significant or insignificant as the case may be. The mere existence of inconsistencies does not mean that the State’s case ought to be rejected. However, an assessment must be made of how significant they are. (Yanduo v The State (2023) SC2354 (per Cannings, Toliken, Pitpit, Lindsay JJ; Kanukanu v The State (2020) SC1913 (Salika CJ, Toliken, Polume-Kiele JJ); Kapahi v. The State [2010] 2 PNGLR 301,(Injia CJ, Cannings, Kariko JJ); David v The State (2006) SC881 (Salika J. (as he then was), Cannings and Gabi JJ.) So, did the primary judge err as submitted by the Applicant?
    
30. We find that the primary judge did in fact identify the inconsistencies in the State evidence when they were put to his attention by defense counsel in submissions. Speaking of the evidence of Markus Mintai, His Honour said at page 72, lines 20 -23 of the Review Book –
    

“This witness departed from the evidence of the other two State Witnesses earlier on as he says that Waiti Kerua cut the deceased on the leg and not Are Kone Olmias alleged by the two first State witnesses. He said that Waiti Kerua was the one who chopped Nobert Sil on the leg. ...”

31. Further down at lines 39 – 43, His Honour continued:
    

“The third witness Markus Mintai’s evidence departs from the two other witnesses. He says Waiti Kerua chopped the deceased Nobert and not the accused. He says that the accused was not present at the scene of the crime. They had left him back at the landslide area at Amilbera when they transferred the body of the deceased from the dyna to the green Hilux.”

32. After considering the submissions by counsel, His Honour then assessed the significance of those inconsistencies at p. 73 lines 34 – 40. There he said:
    

“I agree with the State that the inconsistencies outlined by the defence are trivial. The case of identification by the two witnesses, particularly that they know the accused very well, that they are cousins, they [are] relatives, is very, very, competitive [convincing?] in the circumstances. They identified him at the scene of the scene of the crime and particularly he was the one who cut Nobert Sil on the left lower leg. These are two witnesses who said that the accused is a relative. They know him very well. How could they possibly have mistaken the accused that afternoon.?”

33. Clearly to us the primary judge identified the inconsistencies and assessed their significance against the evidence that was before him – the positive identification of Applicant by two of his own relatives as the one who cut the deceased Nobert Sil’s leg. The Applicant elected, as is his right, to remain silent. The primary judge’s statement that this did not assist the Applicant’s case was not a shift of the burden of burden of proof as Mr. Pepson for the Applicant unsuccessfully attempted to argue. His Honour was simply stating an obvious fact. What His Honour said was obviously done in the context of his assessment of the significance of the inconsistencies. The primary judge decided to believe the evidence of the first two witnesses instead of that of Markus Mintai’s and convicted the Applicant for the murder of Nobert Sil. The Applicant’s statement in his record of interview that he was elsewhere when the deceased Nobert Sil was killed has no probative value when taken alone.
    
34. We are satisfied therefore that the primary judge did not err in this regard.
    
35. The ground on sentence was abandoned by the Applicant and there is no need to say anything about it.
    
36. In the result, the Court orders that:
    
    • (a) The Application for Review is dismissed.
      
    • (b) The conviction and sentence imposed by the Court below are confirmed.

_______________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent