SC2560

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 38 OF 2020

BETWEEN:
ERIC ENASO
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani:  Polume-Kiele J, Dingake J, Eliakim, J
2024:   22nd & 26th April

CRIMINAL LAW - Wilful murder - Section 23 of the Supreme Court Act – conviction unsafe - Applicant acquitted and discharged.

Cases Cited:

John Beng v The State [1977] PNGLR 605
Ambrose Lati v The State (2015) SC1413

Counsel:

Ms. Jacinta Bibilo, for the Applicant
Mr. Augustus Bray, for the Respondent

26th April 2024

1.	BY THE COURT:  This is our decision with respect to a review lodged by the Applicant against the decision of the National Court convicting him of the offence of Murder contrary to Section 300(1) of the Criminal Code Act.

2.	The Applicant was sentenced to forty-three (43) years imprisonment.

3.	The Applicant seeks to review the conviction and sentence. 

4.	The background facts underpinning this review are that the applicant, along with his co-accused, Philip Taku, both police officers, on the 14th of February 2015, drove to a border of Jiwaka and Simbu Province, to drop off some policemen.

5.	Along the way they drove past the deceased who drove in the opposite direction with his vehicle’s high beam on. The Applicant and others in the vehicle turned their vehicle around and chased the deceased. They caught up with the deceased, whereupon the Applicant assaulted the deceased. Thereafter, the Applicant and others left the deceased to go and drop other police officers at the check point. 

6.	The Applicant and others drove back to Kudjip and on their way back they met the deceased again. The deceased was driving his vehicle towards Kudjip. The Applicant and others assaulted the deceased and hit him on the head with a rifle butt. They dragged him into the Police vehicle and drove to the Kudjip Police station. At the Police station, they continued to assault on the deceased.

7.	The deceased was arrested and taken to Banz Police Station where he was locked up in Police cells, and later found dead thereat.

8.	The autopsy report was presented by the medical superintendent who had custody and control of the hospital records.

9.	The notes in the medical report showed that the deceased suffered blunt trauma, a hematoma that eventually caused both respiratory failure and cardiac arrest which caused his death.

10.	The grounds relied upon to overturn the conviction and sentence are that:

i)	The Court did not consider three (3) different crime scenes.

ii)	The Court did not consider the State witnesses evidence given at the trial.

iii)	The Court did not consider the Medical Report given in Court.

iv)	The Court did not consider the defence evidence given at the trial.

11.	The Applicant’s Counsel faults the trial judge for having failed to consider the evidence suggesting that the deceased was assaulted by other police officers at Banz Police Station and that this assault may have caused the death of the deceased.

12.	The Applicant also argued that the trial judge erred by wrongly convicting the Applicant of murder contrary to Section 300 (1) of the Criminal Code, when the original charge of murder was amended to that of wilful murder contrary to Section 299 (1) of the Criminal Code.

13.	Accordingly, learned Counsel for the Applicant, Ms. Bibilo, argued that since the operative charge was one of wilful murder, the learned trial judge, should have found that the element of intention to kill had not been proven and that in consequence, the Applicant should have been acquitted.

14.	Accordingly, Ms. Bibilo learned Counsel for the Applicant, argued that given the operative charge, the learned trial judge, if he was of the view that the evidence established a lesser offence of murder, he should have invoked Section 539 of the Criminal Code, which he didn’t do.

15.	Section 539 of the Criminal Code bears quoting. It provides:

“539. CHARGE OF MURDER OR MANSLAUGHTER.
(1)	On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged. 
(2)	…”

16.	It is plain from the above that where an accused is charged with wilful murder, the Court, through the invocation of Section 539 of the Criminal Code may return a verdict of guilty of a lesser offence of murder.

17.	It is common cause that the learned trial judge did not invoke s.539 of the Criminal Code as required.

18.	The State initially took the view that the conviction was safe and should not be disturbed.

19.	Learned Counsel for the State, Mr. Bray referred us to the famous case of John Beng v The State [1977] PNGLR 605, in arguing that the conviction was safe and ought not to be disturbed.

20.	The position of the State seemed to have changed towards the end of arguing the review, in that, Mr. Bray, learned Counsel for the State, conceded that, “the conviction was not proper in terms of the charge”.

21.	Having made the concession above, learned Counsel for the State Mr. Bray, submitted that the Court may nevertheless, if so minded, invoke s.27 and 28 of the Supreme Court Act, and affirm the decision of the trial Court.

22.	Section 27 of the Supreme Court Act, bears stating. It provides:

“27. POWERS OF SUPREME COURT IN SPECIAL CASES.
(1)	If it appears to the Supreme Court that an appellant, though not properly convicted on some charge, or on some count or part of the charge, has been properly convicted on some other charge, or on some other count or part of the charge, the Court may–

(a)	affirm the sentence passed on the appellant; or

(b) 	pass such sentence in substitution for it as it thinks proper and is warranted in law by the verdict on the charge or on the count or part of the charge, on which the Court considers that the appellant has been properly convicted.

(2) 	…”

23.	Section 28 of the Supreme Court Act, on the other hand states that:

“28. NEW TRIAL.

(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.

24.	It is true that the Court has a discretion in appropriate circumstances, to invoke Sections 27 or 28 of the Supreme Court Act.

25.	In this case, we are not inclined to invoke  any of the above sections of the Supreme Court Act, because having regard to the totality of the evidence, the manner in which the case was conducted and more significantly the concession by the State that the conviction was not proper, the entire conviction, in our view, is not safe, consistent with the ratio of the case of John Beng v The State 1977 PNGLR referred to earlier. (Ambrose Lati v The State (2015) SC1413.

26.	In the result, this Court orders as follows:

(a)	Application for review is granted.

(b)	The conviction of murder is quashed, and the Application is acquitted and discharged.
_______________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant		
Office of the Public Prosecutor: Lawyers for the Respondent