Fred Bukoya v Independent State of Papua New Guinea (2007) SC887

• Jurisdiction: Papua New Guinea
• Judge: Sevua Mogish & Lay JJ
• Judgment Date: 17 October 2007
• Court: Supreme Court
• Citation: (2007) SC887
• Docket Number: SC Appeal No 80 of 2004
• Year: 2007
• Judgement Number: SC887

Full Title: SC Appeal No 80 of 2004; Fred Bukoya v Independent State of Papua New Guinea (2007) SC887

Supreme Court: Sevua, Mogish & Lay JJ

Judgment Delivered: 17 October 2007

SC887

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

S.C. APPEAL NO 80 OF 2004

BETWEEN

FRED BUKOYA

Appellant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Sevua, Mogish & Lay JJ

2005: 1 September

2007: 17 October

CRIMINAL LAW- Criminal Code s589 - Admission of depositions by consent -Murder trial - prosecution case by depositions only - Prosecution witnesses not tested by cross examination -Whether verdict safe - Considerations for admitting depositions by consent.

CRIMINAL LAW - Silence at the Police Station, whether adverse inference may be drawn.

Cases Cited

Papua New Guinea Cases

Nai'u Limagwe v The State [1976] PNGLR 382

SCR No.1A of 1981; Re Motor Traffic Act [1982] PNGLR 122

Awoda v The State [1984] 165

The State v Misari Warun [1988-89] PNGLR 327

Sampson Pulube v Herepe Wapia [1995] PNGLR 472

The State v Hekavo [1991] PNGLR 394

Paulus Pawa v The State [1981] PNGLR 498

State v Raima [1993] PNGLR 230

Epeli Davinga v State [1995] PNGLR 263

The State v John Billy White [1996] PNGLR 262

Charles Bougapa Ombusu v The State [1997] PNGLR 699

Oscar Tugein v Michael Gotaha[1984] PNGLR 137

State v Kiki Hapea [1985] PNGLR 6

The State v Kai Wabu [1994] PNGLR 498

State v Goli Golu [1979] PNGLR 11

State v Win Kwainfelin [1986] PNGLR 106

State v Kiki Hapea [1985] PNGLR 6

State v Mana Turi [1986] PNGLR 221

John Jaminen v The The State [1983] PNGLR 381

Overseas Cases

Teper v R [1952] 2 All ER 447

R v Gibson (1887) 18 QB D. 537

R v Ellis [1910] 746

Stirland v DPP [1944] AC 315

R v.Lee Kun Vie Ah (1915) 11 Cr App R 293;

Lewis v R (1971) 55 Cr. App R 386;

R v Henriques (1991) 93 Cr App R 237

Doyle v Ohio 426 US 610,

R v Naylor (1933) 1 KB 685,

R v Leckey (1944) 1 KB 80

R v Amway Corp (1989) (1) SCR 21

United States v Hale 422 US 171 (1975)

Griffiths v California Corp (1965) 380 US 609,

Chau Chi Hung v The Queen [1982] HKCA 215.

Facts

The Appellant was charged with wilful murder. The trial proceeded with the whole of the evidence for the prosecution being admitted by consent by way of un-sworn statements and several affidavits. The Appellant gave sworn evidence. The trial judge said he did not believe the accused because he had been selective in his answers to the police and because he had not prepared a sketch of the scene for the police, as he had done at the trial. The Appellant was convicted of murder and sentenced to 10 years in hard labour.

Held

1 Permitting the State’s case to proceed solely on the tendered statements was a wrong course which tainted the whole trial. The judge should have refused to accept the statements of evidence as it was not in the best interests of justice,. The State should have been ordered to produce the witnesses to be called to give the evidence. Admitting the untested witness statements on contested and critical issues made the verdict unsafe and unsatisfactory. Appeal allowed on that ground alone.

2 A trial based solely on admissions should be avoided;

3 A trial judge should not, as a general rule, admit affidavits or statements by consent, in the case for the prosecution, if:

a The credibility of the witness is in issue;

b The accuracy of the witness’s evidence is in issue;

c The witness’s evidence conflicts with other evidence in a particular relevant to the guilt or innocence of the accused;

d The witness’s evidence bears on a contested fact in the issue of guilt or innocence or upon inferences of such fact to be drawn by the Court in reaching its verdict.

4 Where a deposition is admitted by consent or pursuant to statute the judge should warn himself of the difficulties posed by accepting evidence from persons whose credibility cannot be tested, in particular with respect to any point where the untested deposition is in conflict with oral evidence tested by cross examination.

5 A judge proposing to admit a statement into evidence should satisfy himself that there is some evidence that the maker of the statement understood its contents.

6 There is no principle of law which requires the accused’s right not to say anything at a Police interview, to be exercised in toto or not at all.

7 Until the occasion arises on which the issue can be fully argued, a judge should not comment on the silence of the accused at the police station. A judge may comment on the accused’s silence which occurs after he has been formally called upon to defend himself (such as at committal proceedings), if:

1. The State has established a prima facie case;

2. The accused goes into evidence;

3. The delay in putting forward the accused 's version of events (as distinct from mere silence) is commented upon by the judge as a factor in disbelieving the defence, and not as a factor of weight in proof of the State case.

8 No inference or adverse comment should be made from the alleged omission of an accused person to draw a sketch of the crime scene during a Police interview;

9 The interests of justice require that a new trial be conducted.

Counsel

I Molloy, for the Appellant

J. Pambel, for the Respondent

17 October, 2007

1. BY THE COURT: The Appellant was convicted of murder on the 14 July 2004, in the National Court at Wabag. On 23 September, 2004 he was sentenced to 10 years imprisonment.

2. An appeal was filed against the conviction and severity of sentence imposed. Where required, leave to appeal was granted on 18 November, 2004.

3. The Appellant was employed as a security guard at the Porgera Mine Field in Enga Province. For some time there had been problems with illegal miners in the mine field. On 23 February, 2002 at night the Appellant and other security guards were ordered to apprehend a group of illegal miners. The security guards split into two groups. One was led by the Chief Duty Officer, Pitu Lapai and the other group was led by the Appellant. The Appellant’s group was to manoeuvre the illegal miners to an area where the group led by Pitu Lapai could apprehend them.

4. The group led by the Appellant, who was armed with a loaded shotgun, met a group of illegal miners, one of whom was the deceased, Yandari Pyali. Shortly after this meeting, the Appellant discharged his shotgun two times into the air as warning shots. The Appellant then discharged the shot gun three times at the illegal miners.

5. The deceased was killed immediately when he was hit in the chest by a shotgun pellet. The Appellant admitted he was the person who fired the shot killing the deceased.

6. The indictment contained two counts of unlawful killing contrary to Section 299 of the Criminal Code. The State offered no evidence on one count in the absence of medical evidence showing the cause of death. The trial was therefore confined to the single count of wilful murder of the deceased.

7. The Appellant did not deny the shooting. His case was that the unlawful entrants were found armed, making threats, headed towards the Appellant and his group and did not disburse despite warnings. At the trial the Court was informed that the Appellant intended to raise defences of self-defence under section 269 Of the Criminal Code and aiding in self-defence under section 271 of the Criminal Code.

8. At the trial there were tendered, by consent of counsel for the accused, statements or affidavits of all of the prosecution witnesses, most of which were unsworn. The statements were of Kurai Kessy, Malyio Nisera, Abraham Nakon, Enuwa Okoko, Boo Tonny, Lyoke Mathew, Tommy Tandipa, John Nangali, Pitu Lapai, Peter Wanis, Harald Giebel, Brendon Kelleher, Ben Turea, First Constable Joseph Numbos, Senior Sergeant Jerry Somon, Seargent Maso Ae and Daisy Atua.

9. The Appellant has appealed on some 32 grounds. For present purposes it is sufficient to set out grounds 28 to 32:

1. The trial judge erred in admitting the unsworn statements of Kurai Kessy, Malyio Nisera, Abraham Nakon, Enuwa Okoko, Boo Tonny, Lyoke Mathew, Tommy Tandipa, John Nangali, Pitu Lapai, Peter Wanis, Harald Giebel, Brendon Kelleher, Ben Turea, First Constable Joseph Numbos, Senior Seargent Jerry Somon, Seargent Maso Ae and Daisy Atua

2. further or alternatively, the learned trial judge erred in failing to exercise his discretion to exclude some or all of the said statements particularly having regard to the following:

a. there was no or no adequate reason given for not calling the witnesses to give oral evidence;

b. there was no or no adequate explanation for the failure to produce affidavits or sworn statements;

c. there was no or no adequate evidence concerning the circumstances in which the statements were obtained or transcribed;

d. there was no or no adequate evidence to satisfy the court that each of the witnesses was literate or fully understood the statement he or she signed;

e. the statements (or some of them) were contentious, prejudicial to the Appellant and/or ambiguous;

f. the admission of the statements deprived the court of the opportunity of assessing the witnesses credibility;

g. the reception of the statements offended the best evidence rule;

h. some of the witnesses were likely to be hostile to the Appellant, for example,Kurai Kessy,Malyio Nisera were associates of and engaged in unlawful conduct with the deceased;

i. the admission of the statements in...