Glen Otto Kapahi v The State (2010) SC1023

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Cannings & Kariko JJ
• Judgment Date: 30 April 2010
• Citation: (2010) SC1023
• Docket Number: SCRA NO 22 0F 2002
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1023

Full Title: SCRA NO 22 0F 2002; Glen Otto Kapahi v The State (2010) SC1023

Supreme Court: Injia CJ, Cannings & Kariko JJ

Judgment Delivered: 30 April 2010

SC1023

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 22 0F 2002

GLEN OTTO KAPAHI

Appellant

V

THE STATE

Respondent

Waigani: Injia CJ, Cannings & Kariko JJ

2009: 3 September,

2010: 30 April

CRIMINAL LAW – appeal against conviction – inconsistencies in evidence of State witnesses – whether significant – whether adequately addressed by trial judge – whether defence case adequately addressed – whether guilty verdict unsafe or unsatisfactory.

The appellant appealed against his conviction for armed robbery on the ground that there were material inconsistencies in the evidence of the State witnesses, which made the verdict unsafe and unsatisfactory.

Held:

(1) The mere existence of inconsistencies in the evidence of State witnesses does not necessarily mean that the State’s case should be rejected. However, if there are inconsistencies the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

(2) Here, the State witnesses gave three different versions of the circumstances in which the appellant was apprehended. The inconsistencies in the evidence were significant and the trial judge did not adequately address them. Further, there was a failure to properly address the defence case which under all the circumstances rendered the verdict unsafe and unsatisfactory.

(3) The appeal was accordingly allowed and, a miscarriage of justice having occurred that cannot be more adequately remedied by an order for a new trial, the conviction was quashed and a verdict of not guilty entered.

Cases cited

The following cases are cited in the judgment:

Brian John Lewis v The State [1980] PNGLR 219

Devlyn David v The State (2006) SC881

John Beng v The State [1977] PNGLR 115

Karo Gamoga v The State [1981] PNGLR 443

Paulus Pawa v The State [1981] PNGLR 498

Rimbink Pato v Umbu Pupu [1986] PNGLR 310

APPEAL

This was an appeal against conviction for armed robbery.

Counsel

G O Kapahi, the appellant, in person

R Auka, for the respondent

30 April, 2010

1. BY THE COURT: Glen Otto Kapahi appeals against his conviction for armed robbery. He and two other accused were convicted by the National Court at Waigani and sentenced to six years imprisonment each over an armed robbery that occurred at the Stop N Shop store at Rainbow, Gerehu on 15 November 2001.

2. The sole ground of appeal argued by the appellant is that the verdict of guilty was unsafe and unsatisfactory as the trial judge incorrectly found it proven that he was apprehended in the motor vehicle that had been used in the robbery a matter of minutes after the robbery took place. He argues that the State witnesses provided three different versions of the circumstances in which he was apprehended and these inconsistencies were not properly addressed by the trial judge who also failed to properly address the appellant’s sworn evidence that he was apprehended and shot by the police at a completely different place. The appellant argues that there was no other evidence linking him to the robbery and he should have been found not guilty.

THE TRIAL

3. The appellant has correctly pointed out that there was no evidence before the National Court linking him to the robbery other than the evidence of three police witnesses as to the circumstances in which he was apprehended shortly after the robbery.

4. The trial judge applied the principles on circumstantial evidence from the leading case of Paulus Pawa v The State [1981] PNGLR 498 and concluded that the proven facts were inconsistent with any reasonable hypothesis other than the guilt of the appellant. The appellant does not take issue with the way in which the trial judge stated or applied those principles; and rightly so. We consider that the trial judge stated the correct principles and applied them to the facts that he found had been proven. The trial judge reached the inevitable conclusion based on those proven facts that they were inconsistent with any reasonable hypothesis other than guilt.

5. The facts that the trial judge found proven were:

· the appellant was the offside front passenger in a black Mitsubishi car driven at high speed from the scene of the robbery in the direction of Gerehu;

· the car was followed by two police units that happened to be in the vicinity, in hot pursuit;

· the appellant had a pistol in his possession and at one stage fired shots at a police officer, Const James Yoko, who was on duty at the residence of the then Speaker of the National Parliament, Hon Bernard Narokobi MP;

· Const Yoko returned fire, forcing the car (containing the appellant and five others) to run off the road;

· during the shootout the appellant was shot in his left thigh;

· the appellant had difficulty getting out of the car and was apprehended in the vehicle and taken to hospital.

ISSUES

6. The issues that require determination in this appeal are:

1 Were there inconsistencies in the evidence of the State witnesses?

2 Were the inconsistencies adequately addressed by the trial judge?

3 Did the trial judge adequately assess the defence case?

4 Was the verdict unsafe or unsatisfactory?

5 What order should the Supreme Court make?

1 WERE THERE INCONSISTENCIES IN THE EVIDENCE OF THE STATE WITNESSES?

7. At the trial the State relied on the evidence of five witnesses. One of them was a member of the staff at the store who was threatened with a firearm and forced to hand over a money bag containing cash. This witness could not identify any of the suspects. The other four witnesses were police officers who gave evidence about how the appellant and his two co-accused were apprehended. Three of the police officers testified about how the appellant was apprehended. It is their evidence, the appellant argues, which provides three different versions of how he was apprehended.

8. Const James Yoko said he was on duty at the Speaker’s residence at about 8.30 am. He heard shots being fired from a distance so he got his police-issued firearm. He heard and then saw a vehicle, a black Mitsubishi, speeding in his direction. There were six people in the car, two in the front and four in the back. The person sitting in the front passenger seat fired a shot at him. He returned fire and shot at the vehicle’s rear tyres as it was driven past, causing the driver to lose control and the vehicle ran off the road. He saw some occupants run away. He walked towards the abandoned vehicle and saw somebody still inside it. That person pointed a pistol at him. A police vehicle then arrived on the scene, so he was able to disarm him. That person was the appellant. He (Const Yoko) said he did not know what made it difficult for the appellant to get out of the vehicle. He did not shoot the appellant and the appellant was not injured.

9. Snr Sgt Moses Ipsagi said that he was in a police vehicle in the vicinity of the robbery with other police officers when they heard over the police radio what had happened. They gave chase after two suspects running on foot and eventually apprehended them in front of a house occupied by the then lawyer, Powes Parkop. Snr Sgt Ipsagi said that he was not armed at the time, that some shots were fired by other police officers. In examination-in-chief he identified the co-accused Alex Tonak and Gonek Potomak as being the two suspects apprehended outside Mr Parkop’s residence. However, in cross-examination he said that it was Alex and “the accused Otto” (the appellant) who were apprehended there.

10. Const Steven Numbos said that he was the driver of a police vehicle that chased the black Mitsubishi. Other police officers were with him in the police vehicle and there was an exchange of gunfire. The Mitsubishi went around a corner in front of him and he lost sight of it but then soon afterwards came upon it. All the occupants except the appellant were already on foot. The appellant was struggling to get out of the vehicle. The appellant was seriously injured. Const Numbos said he saw blood coming down his legs but did not know how he was injured or whether he was shot by any of the officers in his vehicle. He was bleeding heavily and rushed to hospital. He felt sorry for the appellant and helped him. “Me alone I apprehended Glen and put him in the car”, Const Numbos testified.

11. We uphold the appellant’s submission that the State witnesses gave three versions of the circumstances in which he was apprehended, viz:

1 in the Mitsubishi, by Const Yoko, uninjured;

2 at Mr Parkop’s residence, by Snr Sgt Ipsagi, uninjured;

3 in the Mitsubishi, by Const Numbos, seriously injured and bleeding heavily.

12. We agree with the appellant that there are inconsistencies in the evidence of the three witnesses, in three respects:

· on the one hand, Const Yoko and Const Numbos said that the appellant was apprehended in or as he was trying to get out of the Mitsubishi, on the other hand Snr Sgt Ipsagi said that he was apprehended in front of Mr Parkop’s...