Devlyn David v The State (2006) SC881

• Jurisdiction: Papua New Guinea
• Judge: Salika, Cannings & Gabi JJ
• Judgment Date: 22 November 2006
• Citation: (2006) SC881
• Docket Number: SCRA NO 74 0F 2003
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC881

Full Title: SCRA NO 74 0F 2003; Devlyn David v The State (2006) SC881

Supreme Court: Salika, Cannings & Gabi JJ

Judgment Delivered: 22 November 2006

SC881

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 74 0F 2003

BETWEEN

DEVLYN DAVID

Appellant

AND

THE STATE

Respondent

Kimbe/Kokopo: Salika, Cannings & Gabi JJ

2005: 1 November

2006: 22 November (Kokopo)

APPEAL

CRIMINAL LAW – circumstantial evidence – test to apply when conviction is dependent on circumstantial evidence.

CRIMINAL LAW – inconsistencies in evidence at trial – need to identify inconsistencies and explain significance.

The appellant was one of three men convicted of wilful murder. There were no eyewitnesses and the case turned on circumstantial evidence. The appellant argued that the trial judge erred by basing the conviction entirely on circumstantial evidence and ignoring inconsistencies in the evidence about the timing of different events. The appellant appealed against both conviction and sentence. His co-accused also appealed but failed to attend the hearing of the appeal. The Supreme Court determined only the appellant’s appeal.

Held:

(1) In a case substantially dependent on circumstantial evidence the question to be asked is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

(2) It is an integral part of a judge’s decision-making process in a criminal trial to state clearly the elements of the offence. If the elements are not stated and applied, an error of law will be made.

(3) In a homicide trial in which conviction turns on circumstantial evidence, the trial judge should make clear findings as to who killed the deceased and where, when, how and why the deceased was killed. Failure to do so will constitute an error of law.

(4) If there are inconsistencies in the evidence the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

(5) In the present case, the proven facts did not lead to only one conclusion; the trial judge failed to specify the elements of the offence and failed to make clear findings of fact; and inconsistencies in the evidence were not identified and assessed rationally.

(6) Accordingly the verdict of guilty of wilful murder was set aside on the ground that under all the circumstances of the case it was unsafe and unsatisfactory. A miscarriage of justice occurred; there was insufficient evidence to find the appellant guilty of an alternative offence and he was acquitted.

Cases cited

John Beng v The State [1977] PNGLR 115

Brian John Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219

Karo Gamoga v The State [1981] PNGLR 443

Paulus Pawa v The State [1981] PNGLR 498

APPEAL

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

Counsel

D David, the appellant, in person

P Kaluwin, for the respondent

22 November, 2006

1. BY THE COURT: This is an appeal against the conviction and sentence by the National Court (Bidar AJ) of the appellant, Devlyn David, on a charge of wilful murder.

BACKGROUND

2. On 23 October 1999, a man, John Francis Yip, lost his life at Kaut village near Kavieng, New Ireland Province. His body was found with a bushknife implanted in it. A murder investigation was started. The appellant and two others, Linson Paul and Kael John, were charged and committed for trial on 7 November 2000.

3. They were jointly tried in a six-day trial at Kavieng. Evidence was heard and submissions made on 13, 22, 25, 26 and 27 August 2003. On 28 August 2003, Bidar AJ convicted the appellant and the two others of wilful murder. Later the same day his Honour sentenced them to 30 years imprisonment each.

4. On 2 October 2003, they gave notice of an appeal. This was within the 40-day period permitted by Section 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before this court.

5. The appeal was heard at Kimbe in November 2005. Only the appellant Devlyn David was present. We do not know why the other two were not present. This judgment only deals with his appeal and the orders of the court only relate to him.

THE NATIONAL COURT PROCEEDINGS

The charge

Linson Paul, Devlyn David and Kael John of Magean, Mussau, New Ireland Province, stand charged that they … on the 23rd day of October 1999 at Kaut, Kavieng, in Papua New Guinea wilfully murdered John Francis Yip.

6. The indictment was presented under Section 299 of the Criminal Code (wilful murder), which states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Arraignment

7. It was put to the appellant and his co-accused at the start of the proceedings that on the day in question they were at Kaut, a village on the Buluminski Highway between Kavieng and Namatanai. They went to the deceased’s house, chopped off the deceased’s arm, and stabbed him in the chest with a bushknife, causing him to die. The deceased’s body was found in the corridor of his house. They planned to kill him.

8. The appellant and his two co-accused pleaded not guilty.

Opening address

9. In opening the case the prosecutor, Mr Rangan, alleged that the three co-accused were in Kavieng on the afternoon of 23 October 1999. One of them approached a man called Gregory Ote (the key State witness) and asked if they could hire his vehicle to go to Kaut. He agreed, they gave him K20.00, he drove them to Kaut and they picked up another person, Collin, on the way. At Kaut, they left Gregory Ote and Collin with the car. They told Gregory what they were going to do and what they hired the vehicle for. They returned about 6.30 pm from the direction of the deceased’s house. They plus Gregory and Collin then headed back towards Kavieng.

10. The deceased was found by his neighbours. There was blood all around the house. He had a small bushknife stuck in his chest.

11. The State did not pinpoint any of the accused as directly killing the deceased but alleged that circumstantial evidence would connect each of them to the death.

The State’s case

Outline

12. Fourteen exhibits were admitted into evidence by consent. Five witnesses gave oral evidence.

Exhibits

13. Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS TENDERED BY THE STATE

No Description Content

A Statement: On 23.10.99 at about 3.30 pm he was standing beside the road at his
place – saw a Toyota Hilux double-cab, grey and black with red
Charlie Roy stripes, travelling very fast from town and following the Kaut road –
he saw five men in the vehicle – it was raining and he did not
recognise the men – the vehicle returned between 7.00 and 8.00 pm.

B Statement: On 23.10.99 he was at his block – saw a double-cab Hilux, grey with
Andrew Malus red stripes, drive past, towards Kavieng – at about 5.30 or 6.00 pm the
same vehicle drove past towards Lokono – ten minutes later it came
back again.

C Statement: On 23.10.99 he was walking back from the beach at Kaut towards his
Koniel Igomat house on the Kaut road – saw a Toyota Hilux double-cab, grey with
red stripes, parked on the road near his house – he and the driver
exchanged greetings – walked to his house and then back to the Hilux,
by which time another man was there – they asked him for water for
the radiator so he went back to his house with one of them to get water
– he asked where they had come from and they replied that they had
dropped some people from Djaul Island at Palum and the engine got
hot and they stopped the vehicle – he said good night and walked back
to Kaut.

D Statement: On 23.10.99 at about 5.30 pm he was sitting in his house near the Kaut
John Mark road and saw a Toyota Hilux double-cab, grey with red stripes, drive
towards Lokono village – there were two men in the vehicle, the driver
and his off-sider – four or five minutes later the vehicle drove back
towards Kavieng.

E Statement: On 23.10.99 he was the driver of a PMV called Zikanda – about 3.00
Timbe pm he drove to Kaut – came back to town about 4.30 pm and then
Tongiana drove back to Kaut – arrived at John Yip’s place – his crew, Tom,
went to see John Yip to ask him for his fishing net – left John Yip’s
place at about 6.00 pm and drove back to town – they did not meet
anyone on the road and nobody stopped them – he saw lights from a
vehicle travelling behind them but it stopped somewhere – he finished
work at about 7.00 pm and went home.

F Statement: About 6.00 pm on 23.10.99 he and his wife and children were walking
Johnson Kasup on the road from Kaut to their block – they met three men who did not
say anything to them and just hurriedly walked past.

G Statement: He is John Yip’s grandson – left John Yip’s house around midday on
Landawa 23.10.99 – came back about 5.45 pm and called out for John Yip but
Manau there was no answer – called for him again then heard a whistle
coming from John Yip’s room – by this time it was 6.30 pm and dark –
then he saw John Yip...