SC2718

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO 31 OF 2023

LIONEL POREAPA
Appellant

AND
THE STATE
Respondent

WAIGANI: BERRIGAN J, CAREY J, WOOD J
25 FEBRUARY, 28 MARCH 2025

CRIMINAL APPEAL – against conviction – S 299, Criminal Code – Wilful Murder – Identification - Principles applied – Conviction unsafe – Appeal upheld. 

On an appeal against conviction for wilful murder which rested on the identification evidence of two State witnesses that the appellant, a police officer, fired a pump action shotgun into a crowd,

Held:

The learned trial judge fell into error when he did not consider the inconsistencies in the evidence of the State witnesses. The significance of the inconsistencies, together with the circumstances in which they were made, rendered the identification evidence unsafe. The totality of the evidence raised the possibility that the deceased was killed by a person other than the appellant.

Appeal upheld.

Cases cited
Lati v The State (2015) SC1413 
John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
Ilai Bate v The State (2012) SC1216
Devlyn David v The State (2006) SC881
Kapahi v State (2010) SC1023

Counsel
F Kuvi for the appellant 
M Tamate for the State

DECISION ON APPEAL

1.	BY THE COURT: The appellant, Lionel Poreapa, was convicted of the wilful murder of Philip Forovoa Aire on 30 November 2019, contrary to s 299(1) of the Criminal Code (Chapter 262), following trial.  He appeals against conviction. 

2.	The appellant raises several grounds on appeal but the essential issue is one of identification. 

3.	To succeed on an appeal against conviction an appellant must by virtue of s 23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

BACKGROUND

4.	The appellant was a police constable stationed at Popondetta Police Station attached to the Highway Patrol Section. At the time he was living in a house on his father’s block at Kakandetta. At the other end of the block, 60 to 70 metres away, was a store which was leased by a group of people from Mt Hagen. 

5.	There was no dispute that earlier the same day a young boy from the area known as “Niugini Compound” had been run over and killed in town by another police officer. The officer was from Mt Hagen and had been driving a vehicle usually kept at the store leased by people from Mt Hagen.

6.	It was the State’s case that at about 11 pm on 30 November 2019, angry members of Niugini Compound marched to Kakandetta to see the owner of the store about the boy’s death. The State called two witnesses who were amongst the group. Both said that there was some light at the appellant’s house. Bruce Guba said he could see a person at the house. He “flashed” a torch at that person and recognised him as the appellant, holding a pump action shotgun. The appellant then walked towards a hibiscus tree and fired a single shot into the crowd hitting the deceased and two other boys simultaneously. He heard one gun shot and it came from the direction of the appellant’s house. He did not see anyone in the group carry an offensive weapon. Lindsay Morgan said that he saw a person come down from the house and that when Bruce “flashed” the torch he saw the appellant, holding a pump action shotgun. After the torch was switched off, the appellant crossed over to where there were some small flowers and fired the gun hitting the deceased and two other boys. He did not know if others had guns or other offensive weapons on them at the very moment the deceased and others were injured. There was only one shot and it came from where the appellant was standing. Bruce placed the deceased into a wheelbarrow and took him to the local hospital with assistance from others. He was declared dead upon arrival at about midnight. Lindsay went home with others from Niugini Compound.  Bruce and Lindsay both said that they knew the appellant because he was the only policeman at Kakandetta.

7.	The appellant did not dispute that he was present but denied either holding a pump action shotgun or firing it into the crowd. It was his case that the accident involving the boy from Niugini Compound occurred at about 4 pm. In response people from Niugini Compound blocked the road leading into town. He attended with other police officers. Between 7 and 8 pm he was dropped home by his superior, NCO Paing Noine, who left him with a K2C rifle given the potential security situation and told him to call for back up if required.  At about 9 pm the appellant was informed by those whose rented his father’s store that Niugini Compound were preparing to destroy the store. The appellant called NCO Noine who returned with four other police officers. The officers observed that the store owners and others from Mt Hagen were gathering near the store, speaking in language, preparing to fight and protect their property. At about 1030 pm Noine was summoned to a meeting by the Provincial Police Commander about the impending security situation. He left with one other officer. Not long afterwards a loud, angry group of youths from Niugini Compound attacked, threatening to kill the highlanders. They came along the back road leading from Niugini Compound and fired shots towards the store. The highlanders returned fire. The appellant fired two shots into the air from his rifle to quell the situation. Fellow officers also fired their weapons. The fight continued for about 10 minutes before the group from Niugini Compound retreated and left. In the meantime, Noine and other policemen had joined them in response to the gunfire. Police asked the highlanders to go back to their area. At the direction of NCO Noine police remained at the site until daybreak. Police inspected the store area and found “bullet” holes in the fence and a toilet near the store. He did not learn that anybody had been injured until the following day. The appellant called NCO Noine and Constable Macolive Gau in support of his case. 

8.	The trial judge accepted the evidence of the State witnesses that it was the appellant who fired into the crowd and that at the time he was holding a pump action shotgun having regard to the evidence that injuries were sustained by the deceased and two others. He rejected the appellant’s evidence and that of his witnesses that he was carrying a K2C rifle as being designed to distance the appellant from the offence. 

CONSIDERATION

9.	An autopsy report showing that the deceased suffered pellet wounds to his left abdomen, shoulder and forearm was generally consistent with him being struck by pellets from a shotgun, as was the fact that a pellet was retrieved during the autopsy. The ballistics evidence was otherwise inconclusive. 

10.	Putting aside that there was no continuity in the custody of the pellet removed during autopsy, on the evidence of the State’s ballistics expert, it is not possible to definitively match a single pellet to a particular shotgun in any event. Matching is done with the shell fired, not the pellets inside it. 

11.	Whilst there was evidence generally that a number of pump action shotguns were held by the armoury at Popondetta Police Station there was no evidence that the appellant was in possession of any particular one at the relevant time. According to the weapons inventory produced through the State’s own witness, the pump action shotgun that the State alleged had been fired by the appellant that night, serial number A1331816, had been returned to the armoury several weeks earlier by him for being unserviceable. 

12.	In the circumstances, the liability of the appellant turned on the evidence of the State’s two eye witnesses.

13.	The law on identification is well settled. In short, where a case depends wholly or substantially on the correctness of identification evidence a judge should warn themselves of the dangers of convicting on such evidence and closely examine the circumstances in which the identification was made. The Court must be satisfied that the evidence is both honest and accurate bearing in mind that mistakes can be made, even in a case of recognition. In assessing the quality of the evidence a court should closely examine all of the circumstances in which the identification was made and critically weigh those factors before relying on the identification evidence: see John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153; Jimmy Ono v The State (2002) SC698. If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability: Ilai Bate v The State (2012) SC1216.

14.	The learned trial judge did not expressly warn himself in those terms nor direct himself to the principles applying in any detail.  Nevertheless, he made it clear that identification was the critical issue and accepted the evidence after considering that although the identification was fleeting or “momentary”, it was a case of recognition, made in sufficient light, at a distance of 15 to 20 metres.  

15.	We are troubled, however, by the fact that the trial judge did not have regard to certain inconsistencies in the State’s evidence. 

16.	In particular, Bruce Guba said that the person he identified as the appellant was wearing “at the bottom” “a police uniform, the field type” and a blue “hand cut” top with holes. Lindsay Morgan said that the appellant was wearing short trousers, body armour or bullet proof vest and a helmet. 

17.	In addition, Bruce said that after the shot was fired he saw the deceased and two other boys fall down. He was scared and ran back several metres to Lindsay and told him that the deceased had been shot. When he flashed his torch a second time he saw that the deceased “was not talking; he was not moving”. Lindsay and another boy went and carried the deceased and the other boys to where he was standing.  Lindsay, however, said that after the shot was fired the deceased ran to Bruce and another person, Apo, and it was then that he saw that the deceased was in a bad condition and struggling to speak. 

18.	Furthermore, Lindsay said that Bruce flashed the torch again at the appellant, at which time he (Lindsay) called out “You shot the small boys” in response to which the appellant said: “I shot him and I will shoot the whole lot of you”. Bruce made no mention of shining the torch at the appellant again nor the exchange between Lindsay and the appellant.  

19.	Whilst it might be accepted that some difference in recollection as to what happened in the immediate aftermath of a shooting is to be expected, the failure by Bruce to mention either shining the torch at the appellant for a second time or the exchange between the appellant and Lindsay that followed is significant.    

20.	It is the discrepancies in the respective descriptions of the shooter that are most concerning. Again, whilst some difference might be expected, on their face they are difficult to reconcile. 

21.	The inconsistencies were not raised with the trial judge by the State and his Honour erred by not considering them. “The mere existence of inconsistencies does not 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”: Devlyn David v The State (2006) SC881; Kapahi v State (2010) SC1023.

22.	Moreover, the inconsistencies in the State’s case raised serious questions about whether the witnesses in fact saw the same person fire into the crowd and whether that person was the appellant. That is particularly so when regard is had to the difficult circumstances in which the identifications were made, namely it was dark, the identification was fleeting and made at some distance. In addition, the observations were made in dynamic circumstances. The witnesses were at the time amongst a large group of people marching on the block. On Bruce’s evidence there were at least 90 angry people present and on Lindsay’s estimate between 20 and 30. 

23.	The questions raised also needed to be considered in light of the evidence, including from the State’s own witness, that the fence and toilet near the store suffered damage consistent with shots being fired from the direction of the group from Niugini Compound. According to the evidence of Bruce and Lindsay, which was consistent with the appellant’s case, once the group from Niugini Compound left it did not return again that night. It is not clear to us then how and when that damage was sustained if not during an attack by at least some members of the group from Niugini Compound present at the material time.  

24.	Those matters, together with the evidence of the ballistics expert that it was possible for a pellet of the kind retrieved from the deceased to be fired from a homemade shotgun, raised the possibility that the deceased was shot either during an attack by Niugini Compound or perhaps an exchange of fire between Niugini Compound and those at the store.

25.	The learned trial judge appears to have dismissed those possibilities on the basis that he found the State witnesses truthful. He was at an advantage to make that assessment but it was necessary for him to have regard to the discrepancies between the two witnesses when doing so. 

26.	Putting that aside, the questions raised by the inconsistencies also needed to be considered in light of evidence, which was not in dispute, that other police officers attended the block at some stage that night. There was in those circumstances a possibility, even accepting that the witnesses were truthful and accurate in the sense that the fatal shot was fired by a person standing at the appellant’s house, that the deceased was shot by another police officer. 

27.	In the circumstances it was not safe to convict on the identification evidence.

28.	This is not a case where we are able to be satisfied on the material before us that no miscarriage of justice has occurred. Accordingly, we uphold the appeal, set aside the conviction and substitute a verdict of acquittal.

ORDERS

29.	We make the following orders:

(1)	The appeal against conviction is upheld.
(2)	The conviction for wilful murder is quashed and substituted with a verdict of not guilty.
(3)	The appellant is discharged.

Lawyer for the appellant: Public Solicitor
Lawyer for the respondent: Public Prosecutor