Anos Naime Maraga, Gaigo Arua Hariki & Hariki Bad v The State (2009) SC968

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Lay and David JJ
• Judgment Date: 30 April 2009
• Citation: (2009) SC968
• Docket Number: SCRA No. 34 of 2003
• Court: National Court
• Year: 2009
• Judgement Number: SC968

Full Title: SCRA No. 34 of 2003; Anos Naime Maraga, Gaigo Arua Hariki & Hariki Bad v The State (2009) SC968

National Court: Kirriwom, Lay and David JJ

Judgment Delivered: 30 April 2009

SC968

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 34 of 2003

BETWEEN

ANOS NAIME MARAGA, GAIGO ARUA HARIKI & HARIKI BAD

Appellants

AND

THE STATE

Respondent

Waigani: Kirriwom, Lay and David JJ

2006: 28th of June

2009: 30th of April

CRIMINAL LAW – appeal - there is no rule that judge must accept or reject the whole of a witness’s evidence - judge may accept part and reject other part - circumstantial evidence - reasonable hypothesis other than guilt must be founded in evidence - only reasonable inference is guilt of the appellants - evidence supports conviction - sentence - terms of years plus fines plus compensation ordered - fines in excess of jurisdiction - order for fines and conditional reduction of sentence upon payment of fines set aside.

Facts

During a rock throwing fight between male villagers from Baruni and Tatana on the Tatana causeway a bomb went off killing a boy from Tatana. No one saw anyone with a bomb. The Appellants were seen at the place where the bomb went off shortly before the explosion. Anos Naime Marage was seen sitting down and doing something while Hariki Badi stood guard with a gun. Gaigo Arua Hariki was also there. When Anos stood up he told Hariki and Gaigo to run back, then he also retreated. The Appellants submitted the inference that when Anos set off, the bomb was unsafe, that there was no evidence that Gaigo was involved and the identification of Hariki was unsafe. The Appellants also submitted that the fines of K2500 each were in excess of jurisdiction and that combined with orders to pay compensation and the terms of imprisonment, was excessive.

Held

1. That Anos Naime Maraga was setting the bomb to go off while Gaigi Arua Hariki and Hariki Badi stood by protecting him is the only reasonable hypothesis available on the evidence;

2. There is no rule that a judge must reject all of a witness’s evidence because he finds some of it inconsistent. A judge is free to accept some evidence from a witness and reject other parts of the evidence, even if it relates to closely linked events;

3. There was clear evidence placing Gaigo Arua Hariki at the scene with Anos Naime Maraga and Hariki Badi, after all the other men and boys from Baruni had retreated;

4. there was adequate identification evidence of Hariki Badi;

5. the convictions are not unsafe or unsatisfactory;

6. the fines of K2500 Kina each are in excess of the jurisdiction granted by Criminal Code s.19 and are set aside together with the orders for conditional reduction of sentence on payment of the fines.

PNG Cases Cited

John Beng v The State [1977] PNGLR 115

Pawa v. The State [1981] PNGLR 498

The State v. Tom Norris [1981] PNGLR 493

Deklyn David v State (2006) SC 881

S v M (1984) 36 SASR 316;

Cubillo v Commonwealth [2000] FCA 1084

References

Phipson on Evidence 14th Edition

Criminal Code

Counsel

D. Sakumai and O. Oiveka, for the Appellants

C. Sambua, for the Respondent

30th April 2009

1. BY THE COURT: Late in the afternoon of 21 April 2001, the Appellants and other Baruni village boys and men were together involved in a stone throwing fight with the boys and men from Tatana village on the causeway leading to Tatana Island. During the fight a bomb was planted under a pile of stones to one side of the causeway. When the Tatana boys were close to the pile of stones where the bomb was planted it exploded, resulting in the death of Nicky Kelson, 15 years of age, from Tatana.

2. No one saw any of the Appellants with the bomb. The evidence for the State came from 4 witnesses from Tatana whom the trial court found identified the Appellants being at or doing something at the location of the bomb blast before the bomb exploded. The issues at trial were identification and whether the court could safely draw the inference that the Appellants were planting the bomb or lighting the fuse or assisting in doing so when they were seen near the place where the bomb was planted and ultimately exploded.

3. Each of the Appellants was convicted of the offence of wilful murder pursuant to section 299 (1) of the Criminal Code and each of them appeals against conviction and sentence.

Appeal against Conviction

4. The Appellants appealed against conviction on the following ground:

a) that the convictions were unsafe and unsatisfactory in that there was inadequate or insufficient evidence to prove the identity of each of the Appellants to be responsible for the killing of the deceased;

5. The general principle of law applicable on an appeal against conviction is stated in the Supreme Court decision of John Beng v The State [1977] PNGLR 115 where the court said:

"On appeal against convictions, the Supreme Court must be satisfied that there is in all the circumstances, a reasonable doubt as to the safest and satisfactoriness of the verdict (conviction) before the appeal is allowed".

6. We address the grounds of appeal in the order pleaded. Each of the Appellants' admitted being at the causeway and throwing stones. The Appellants contended that there was insufficient evidence to prove that Anos Maraga planted or armed or lit the bomb, or that Harika Badi was assisting him, and that there was no evidence that Gaigo Arua Hariki was present with Anos Maraga and assisting him with his presence.

7. We have gone carefully through the transcript of evidence for the State witnesses Willie Igo, Fred Gavera, Billy Gagoa and Nonoa Kove in the appeal book and the following table is a summary of the relevant evidence which they have given, in the context that the 2 opposing groups were throwing stones at each other on the causeway leading to Tatana Island. There were 2 vehicles belonging to Baruni people on the causeway, which later moved to the road Junction near the mangroves. Readers should also note that Hariki Badi and Haraka Badi are 2 different people. Haraka Badi is a mature man, not a youth, described in the evidence as balding with a beard; and his alibi that he was not there, he was at the hospital with his wife, who had just delivered a baby, was accepted and he was acquitted

8. We have constructed the following table to show at a glance the State evidence available against each of the Appellants:

Witness Name Name of the Appellants

Anos Naime Gaigo Arua Hariki Hariki Badi
Maraga

Willie Igo He did not see he saw him at the The Prosecutor
Anos sitting down scene generally drew to Willie
doing anything or (appeal book page Igo’s attention
talking to anyone, 74 line 20) Hariki Badi sitting
he saw him move in the dock, Willie
out of the grass (in Igo then said “I
the area where the think I saw him"
bomb exploded) but gave no
towards the evidence of having
mangroves (appeal seen him in any
book pages 79-80), particular setting.
he saw him come He also named
out of the bush by Haraka Badi as a
himself and go person generally
straight to the present.
vehicle, all the
others were
already on the
vehicles, at the
same time the
bomb exploded
(appeal book page
91)

Fred Gavera He saw Anos He saw him When Anos was
standing where the generally at the standing at the
bomb went off scene (appeal book bomb site (prior to
carrying a page 102) and the explosion),
home-made gun. after the bomb Hariki Badi was
Anos slowly went off the with him.
moved back accused (no names
pointing at them mentioned) ran
with a gun. Then towards the car.
he ran towards the
mangroves. He
was down at the
mangroves when
the bomb went off.
After the bomb
went off Anos
fired the gun.

Billy Gagoa Anos was standing He was standing He was standing
where the bomb where the bomb where the bomb
went off with went off with went off with
Hariki Badi and Anos and Hariki.... Anos and Gaigo...
Gaigo. The other when Anos got up Anos sat down to
(Baruni) boys got he got the gun do something,
on the tip truck from Hariki and when he got up he
and car and drove told him and got the gun from
down to the Gaigo to run to the Hariki and told
junction leaving tip truck. Gaigo and Hariki
only Anos, Gaigo to run to the tip
and Hariki. Anos truck.
was holding a
home-made gun,
he handed it to
Hariki and sat
down. He was
doing something
but the grass
obscured his
hands. When he
got up he got the
gun from Hariki,
told Gaigo and
Hariki to run to the
tip truck (appeal
book pages
136/137 repeated
at 147 and 164).

Nonoa Kove at the place where he saw him He does not
the bomb later generally at the mention Hariki in
exploded he saw fight (appeal book his evidence. He
Anos get up and page 212) says he saw
run (appeal book Haraka Badi with
page 210) a gun standing 5 to
6 m away from
Anos.

Evidence against Anos Naime...