Denden Tom, Daniel Wilson & Samuel Tom v The Independent State of Papua New Guinea (2008) SC967

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ, Kandakasi and Gabi, JJ
• Judgment Date: 01 May 2008
• Docket Number: SCA 61, 62 & 63 of 2002
• Court: Supreme Court
• Judgement Number: SC967

Full Title: SCA 61, 62 & 63 of 2002; Denden Tom, Daniel Wilson & Samuel Tom v The Independent State of Papua New Guinea (2008) SC967

Supreme Court: Salika, DCJ, Kandakasi and Gabi, JJ

Judgment Delivered: 1 May 2008

SC967

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 61, 62 & 63 of 2002

BETWEEN:

DENDEN TOM, DANIEL WILSON & SAMUEL TOM

Appellants

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Salika, DCJ, Kandakasi and Gabi, JJ.

2008: 28th February

01st May

CRIMINAL LAW – PRACTICE & PROCEDURE – Application to visit scene – Trial judge has discretion to decide whether visiting the scene is necessary and desirable – Party applying for visit of scene must make out a case for it – If evidence before the court is sufficiently clear no need to visit scene – Criminal Code s.574

CRIMINAL LAW – Appeal against conviction - Particular offence – Willful murder - No direct evidence of accused causing deceased death—Strong and credible circumstantial evidence suggesting accused involvement and killing of deceased - Accused raising alibi belatedly – Trial judge rejecting alibi evidence – Effect of - No error or omission of trial judge identified – Conviction safe – Appeal dismissed

EVIDENCE - Circumstantial evidence - Principles governing - Accused identified as a known person – Accused identified with weapons used to kill the deceased – Source of evidence credible safe to act on circumstantial evidence.

JUDGES – Disqualification of – Serious matter to ask for a judge to disqualify – There must be good factual and legal basis to disqualify a judge – Seeking disqualification for being in charge of organization prior to become judge no reason to disqualify a judge unless judge actually involved in dealing with the case in subsequently going before him.

Cases Cited:

Papua New Guinean Cases

Chief Collector of Taxes v. Bougainville Copper Limited and Bougainville Copper Limited v. Chief Collector of Taxes (02/02/07) SC853.

PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC592.

An Application by Herman Joseph Leah (2006) SC855.

Peter Yama & Ors v. Bank South Pacific & Ors (2008) SC 921.

Gobe Hongu v. National Executive Council & Ors (1999) N1964.

Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357.

Coecon Ltd v. National Fisheries Authority of PNG (2002) N2182.

Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N2369.

The State v. Puli A’aron (2003) N 243.

Masket Iangalio v. Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea (29/08/03) N2455.

John Peng v. The State [1982] PNGLR 331.

Michael Tenaram Balbal v. The State (22/02/07) SC860.

Paulus Pawa v. The State [1981] PNGLR 498.

The State v. Tom Morris [1981] PNGLR 493.

Garitau Bonu & Rosanna Bonu v. The State (1997) SC528.

The State v. Tony Hahuahori (2002) N2185.

John Jaminan v. The State (No 2) [1983] PNGLR 318.

Regina v. Joseph Kure [1965-66] PNGLR 161.

The State v. Emmanuel Bais and Felix Fimberi (11/06/03) N2416.

The State v. David Yakuye Daniel (15/07/05) N2869.

Norris v. The State [1979] PNGLR 605

Simon Kama v. The State (01/04/04) SC740.

Ure Hane v. The State [1984] PNGLR 105.

Gimble v. The State [1998-99] PNGLR 271.

Steven Loke Ume & Ors v. The State (19/05/06) SC836.

The State v. Baupo & Fabian Girida (1989) N795.

The State v. Tony Pandua Huahahori (No, 2) (21/02/02) N2186.

The State v. Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (11/12/02) N2312.

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State (01/04/04) SC741.

The State v. Thomas Waim [1995] PNGLR 187.

The State v. Kevin Anis & Martin Ningigan (07/04/03) N2360.

Overseas Cases Cited:

Browne v Dunn (1893) 6 R 67 (HL)

Counsel:

C. Narokobi, for the Appellants.

P. Kaluwin, for the Respondent.

01st May, 2008

1. BY THE COURT: Denden Tom, Daniel Wilson and Samuel Tom are appealing against the decision of Mogish J., in the National Court. His Honour found the appellants guilty after a trial and sentenced each of them to life imprisonment on a charge of murder in the course of committing an armed gang robbery. They rely on 7 grounds for their appeal. These are; (1) the National Court did not consider their evidence which included their alibi evidence; (2) their conviction is unsafe because the National Court relied on unreliable circumstantial evidence that did not support an inference only of their guilt; (3) because the deceased died of a single gun shot wound, only one of them could have been convicted of willful murder; (4) the State did not establish the element of intention to kill; (5) the trial judge did not visit the scene of the crime; (6) the trial judge should have disqualified since he was the Public Prosecutor prior to his appointment as a Judge; and finally, (7), the sentence of life imprisonment was excessive given their youthfulness and the particular circumstances of the case. The State argues strongly for a dismissal of the appeal because each of the grounds of appeal is without merit.

2. Given the arguments of the parties, the issues for us to determine are these:

Did the learned trial judge fail to take into account the appellants’ evidence which included their alibi evidence?

(2) Was guilt of the appellants the only inference to be drawn from the circumstantial evidence relied on by the trial judge?

(3) Was the evidence the trial judge relied upon to convict the appellants credible?

(4) Was the lack of evidence identifying the person who pulled the trigger of the gun that shot the deceased critical?

(5) Did the State fail to establish the element of intention to kill?

(6) Did the trial judge fall into any identifiable error when he decided against visiting the scene of the offence?

(7) Did the fact of being the Public Prosecutor prior to his appointment as a Judge required the learned trial judge’s disqualification?

(8) Given the appellants’ youthfulness and particular circumstances of the case, is the sentence of life imprisonment excessive?

3. Issues (1) to (4) concern the trial judge’s treatment of the evidence adduced before him, his findings of fact and what he made out of the facts. The fifth issue concerns a decision not to visit the scene of the crime, while the sixth issue concerns the trial judge’s qualification to preside over the matter. The final issue concerns the appellants’ sentence.

4. We deal with the issue of disqualification first because, if that ground has merit, it will not be necessary to deal with the other grounds of the appeal. Subject to a determination of the issue of disqualification, we will then turn to a consideration of the issue of failure to visit the scene, as that goes into the evidence the appellants would have adduced before the Court. Thereafter, we will consider the first to fourth issues. Finally, subject to a determination of the first to the sixth issues, we will turn to a consideration of the seventh and final issue.

Did the fact of being the Public Prosecutor prior to his appointment as a Judge required the learned trial judge’s his disqualification?

5. Turning firstly, then to the issue of disqualification, we note, there are two serious problems by reason of which, we would dismiss this ground of appeal. The first problem is this. There is no record of the appellants’ either themselves or through their lawyers applying at the commencement of the trial for the trial judge to disqualify himself. The issue is thus, raised for the first time in the appeal. The law is very clear that, an appellant can not raise an issue on appeal for the first time without first raising the issue in the Court below. The Supreme Court in its most recent decision in Chief Collector of Taxes v. Bougainville Copper Limited and Bougainville Copper Limited v. Chief Collector of Taxes,

(02/02/07) SC853.

1 affirmed that principle. In so doing, the Court elaborated correctly on the reasons for that principle in this way, in the context of the matter before it:

“A careful perusal of what transpired in the Court below shows that the issues raised by these claims were not fairly raised and put before the trial Judge. They are therefore, raised for the first time before this Court, which BCL is not entitled to do. The reason for this is simple; an appeal lies to the Supreme Court to examine and where warranted, correct an alleged error of a trial judge and not the failures of parties to raise issues, factual or legal, they should have first raised in the Court below. An appellate court does not and can not sit as a court of original jurisdiction. Further, there is always the need for finality in litigation. Additionally, fairness to a trial judge and the parties themselves, the...