Ambrose Lati v The State (2015) SC1413

• Jurisdiction: Papua New Guinea
• Judge: Sakora J, Davani J, Mogish J, Cannings J, Manuhu J
• Judgment Date: 27 February 2015
• Citation: (2015) SC1413
• Docket Number: SCRA NO 18 OF 2009
• Court: Supreme Court
• Year: 2015
• Judgement Number: SC1413

Full Title: SCRA NO 18 OF 2009; Ambrose Lati v The State (2015) SC1413

Supreme Court: Sakora J, Davani J, Mogish J, Cannings J, Manuhu J

Judgment Delivered: 27 February 2015

SC1413

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 18 OF 2009

AMBROSE LATI

Appellant

V

THE STATE

Respondent

Waigani: Sakora J, Davani J,

Mogish J, Cannings J, Manuhu J

2014: 28 November,

2015: 27 February

CRIMINAL LAW – appeal against conviction for wilful murder – Supreme Court Act, Section 23(1) – whether reasonable doubt about safeness or satisfactoriness of verdict – alleged inconsistencies in evidence – whether accused can be convicted of a shooting death without evidence he was in possession of a firearm – whether conviction for wilful murder can be based entirely on circumstantial evidence.

CRIMINAL LAW – sentencing for wilful murder – death sentence – Supreme Court Act, Section 23(4) – need for appellant to prove identifiable error that vitiates sentence or that sentence manifestly excessive – when is it appropriate to impose death sentence on person convicted of wilful murder?

The appellant was convicted after trial of one count of wilful murder and sentenced to death. The trial Judge found that in the early morning the appellant shot and killed his adopted son, intending to kill him. The trial Judge relied on the evidence of a key State witness who testified that he was standing next to the deceased when he was shot and that though he did not actually see the appellant shoot the deceased, the appellant came out of the darkness from the spot from which the shot was fired. The trial Judge accepted the evidence of four other State witnesses who said that they saw the appellant at or in the vicinity of the crime scene soon after the deceased was shot, behaving suspiciously and inconsistently with the normal reaction of a man who just found out that his son had been killed. The trial Judge rejected the evidence of the appellant that he was with his wife asleep in his shop across the road from the crime scene when the deceased was shot, as the appellant was an unconvincing witness and his evidence, the only evidence for the defence, was uncorroborated.

On sentence the trial Judge emphasised that wilful murder is not just a breach of the Criminal Code but a serious breach of Section 35 (right to life) of the Constitution, that the Court must start with the maximum penalty of death and then ascertain whether the peculiar circumstances of the case warrant a lesser penalty, that the Court should not be constrained by simply ascertaining whether the case falls within the established categories of cases warranting the death penalty and that this was a case of wilful killing of a child by a parent carried out in a premeditated and cold blooded manner in order to acquire the child’s property. Therefore the death penalty was warranted.

The appellant appealed against conviction on three grounds: (a) failure to identify and resolve inconsistencies in the evidence of State witnesses; (b) absence of evidence that the appellant had possession of a firearm; (c) improper application of the principles concerning entering conviction based on circumstantial evidence.

He appealed against sentence on three grounds: (a) failure to follow Supreme Court sentencing guidelines on categories of cases in which the death penalty should be imposed; (b) finding, without evidence, that the killing was premeditated and planned; (c) regarding the death penalty as mandatory and failing to appreciate the discretion to impose a lesser sentence.

Held:

(1) To succeed on an appeal against conviction an appellant must by virtue of Section 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 there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115 applied).

(2) The three grounds of appeal against conviction were arguments that the conviction was unsafe and unsatisfactory. All were dismissed as: (a) there were no material inconsistencies in the evidence of the State witnesses; (b) there was some evidence from one witness that the appellant held a firearm but even if that evidence was rejected, a conviction was still available, based on circumstantial evidence; (c) the trial Judge applied the principles regarding circumstantial evidence and properly concluded that there was only one reasonable inference to draw from the accepted facts: that the appellant shot and killed the deceased, intending to kill him. There was no miscarriage of justice, so the appeal against conviction was dismissed.

(3) To succeed on an appeal against sentence an appellant must establish that the trial Judge made some identifiable error in the course of exercising the discretion as to sentence or that the sentence is manifestly excessive (Norris v The State [1979] PNGLR 605 applied).

(4) The three grounds of appeal against sentence were arguments that the trial Judge made identifiable errors. Ground (a) was dismissed as the trial Judge took into account Supreme Court sentencing guidelines for wilful murder. Ground (b) was upheld as there was insufficient evidence that the killing was premeditated and planned. Ground (c) was dismissed as the trial Judge did not regard the death penalty as mandatory and had a full appreciation of the sentencing discretion available.

(5) One ground of appeal against sentence (which involved a significant error of fact) having been upheld and taking into account that the death penalty should be reserved for the worst cases of wilful murder, the Court, exercising the discretion available to it under Section 27(4) of the Supreme Court Act and being of opinion that a less severe sentence is warranted in law and should have been passed, quashed the death sentence and passed in substitution for it the sentence of 30 years imprisonment.

(6) Thus the appeal against conviction was dismissed and the appeal against sentence was upheld.

Cases cited

The following cases are cited in the judgment:

David Kandakason v The State (1998) SC558

Devlyn David v The State (2006) SC881

John Beng v The State [1977] PNGLR 115

Manu Kovi v The State (2005) SC789

Norris v The State [1979] PNGLR 605

Paulus Pawa v The State [1982] PNGLR 498

Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836

The State v Ambrose Lati (2009) N3740

The State v Ambrose Lati CR No 513 of 2005, 20.03.09 unreported

The State v Hungi Koeskapi (2004) N2654

The State v Tom Morris [1981] PNGLR 493

Ure Hane v The State [1984] PNGLR 105

APPEAL

This was an appeal against conviction and sentence for wilful murder.

Counsel

D Koeget, for the appellant

P Kaluwin, T Ai & H Roalakona, for the respondent

27th February, 2015

1. BY THE COURT: Ambrose Lati was convicted by the National Court of one count of wilful murder and sentenced to death. He appeals against conviction and sentence.

2. The appellant was convicted of the wilful murder of his adopted son Jumbo Ambrose. The trial Judge, Yalo AJ, found that the appellant, then aged 47, shot the deceased, aged 22, at close range in the backyard of the deceased’s house in Beat Street, Wabag at 4.30 am on Thursday 25 March 2004, killing him instantly.

TRIAL

3. The trial Judge found that the deceased and a number of other local residents came out of their houses in the middle of the night as another resident, Mrs Kepan, raised the alarm upon discovering that criminals were attempting to steal her family’s motor vehicle. His Honour found that the appellant also came out of his house, which was across the road from the deceased’s house, and went to the deceased’s yard where he fired three shots from a Police-issued pump-action shotgun in the direction of the deceased. The first two missed and the third struck the deceased in the head. His Honour found that the appellant fired the third shot deliberately into the head and that he intended to kill the deceased, the motive being long-running ill-will between him and the deceased and that the deceased was living on land that the appellant wanted.

EVIDENCE OF STATE WITNESSES

4. In reaching those conclusions the trial Judge accepted the evidence of all seven State witnesses.

1 Kennedy Kepan testified that he was awoken by his parents when criminals attempted to steal their vehicle. He went out to Beat St and chased the criminals who ran up the street in the direction of the Police Station. He stood with State witness Bryan Gugu Humeu at the mini-market near the Seventh-Day Adventist Church on Beat St for 15 to 20 minutes. Then he heard the deceased shout from his backyard “The thief is here!” Then he heard three shots ring out from the deceased’s backyard.

He heard State witness Buka Tipi shout from the footbridge that goes across Kop Creek to the main market that the shots came from the deceased’s residence so someone should check on...