Keko Aparo, Hengene Araba, Kubuna Haio, Manga Tinidipu and Andane Akwia v The State

• Jurisdiction: Papua New Guinea
• Judge: Gajewicz J:
• Judgment Date: 25 May 1983
• Court: Supreme Court
• Citation: (1983) SC249
• Year: 1983
• Judgement Number: SC249

Full Title: Keko Aparo, Hengene Araba, Kubuna Haio, Manga Tinidipu and Andane Akwia v The State

Supreme Court: Pratt J, Bredmeyer J, Gajewicz J

Judgment Delivered: 25 May 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C. APPEAL NO. 29 OF 1981

BETWEEN: KEKO APARO, HENGENE ARABA, KUBUNA HAIO, MANGA TINIDIPU AND ANDANE AKWIA,

APPELLANTS

AND: THE STATE

RESPONDENT

Waigani

Pratt Bredmeyer Gajewicz JJ

27 September 1982

25 May 1983

JOINT TRIALS — Requires careful separation of evidence — Confessions involving other accused — Subsequent denial during trial — Effect of retractions — No substantial Miscarriage of Justice.

QUAERE WHERE CO-APPELLANT HAS ESCAPED FROM CUSTODY — Court may exercise discretion and hear appeal.

APPELLANT BOUND BY HIS GROUNDS OF APPEAL — No amendment of grounds sought.

Legislation

Supreme Court Act — Ss. 23, 23 (1) (b), 23 (2), 29

Constitution — S.155 (2) (b)

Criminal Appeal Act 1912 (N.S.W.) — S.6 (1)

Criminal Code — Ss. 7, 7 (1) (d), 8

Cases Cited

Subramaniam v. D.P.P. (1956) 1 W.L.R. 965

R. v. Fenwick (1953) 54 S.R. (N.S.W.) 147

Rudd v. Rex (1948) 32 Cr. App. R.138

R. v. McKay (1965) Qd. R. 240

Jones (No. 1) (1971) 55 Cr. App. R. 321

Jones (No. 2) (1972) 56 Cr. App. R. 413

Avia Aihi (No. 2) Unreported Judgment No. SC218 dated 26 February 1982

Flower (1966) 50 Cr. App. R.22

R. v. Sorlie (1925) 25 S.R. (N.S.W.) 532

R. v. Clark, Buchanan & Twibell (1962) V.R. 657

R. v. Makrides (1958) 75 W.N. (N.S.W.) 221

Stirland v. D.P.P. (1944) A.C. 315

Rex v. Cutler (1944) 30 Cr. App. R.107

Schubert v. State (1979) P.N.G.L.R. 66

Archbold's Criminal Pleading Practice and Evidence (39th ed.) para 1395

PRATT J: In this matter the appellants were convicted by the National Court for the wilful murder of a Bougainville man who was mortally wounded whilst making his way back to his house near Tinputz on the night of the 21st of February 1981. The killing was a straight out pay-back for the death of a Southern Highlander, and a clan relative of the appellant Andane, in the same area during the course of 1980. In the intervening period the Southern Highlanders endeavoured to obtain satisfactory compensation and in the final week before the pay-back, including the very day of the murder, five meetings were held, some of which involved the District Co-ordinator. Andane was due to return home to his clan area a fortnight after the 21st of February, without at that stage, any monetary satisfaction to show for the death of his clan relative. The learned trial judge found in effect that if he could not take with him adequate compensation he would return with the death of his relative avenged in blood.

Each appeals against the severity of the sentence imposed, and in addition Andane appeals against the conviction on two grounds:

"1. His Honour erred in accepting the evidence of the conversation between Tindiwi Kelekele and Keko Aparo as evidence against the appellant as it was hearsay.

2. His Honour erred in holding that the evidence of an accomplice Tindiwi Kelekele was corroborated by the evidence of Keko Aparo."

I shall deal with the appeals against sentence at a later stage. Although I would uphold the arguments submitted in respect of the two grounds against conviction, because I am of the view that His Honour erred in law on several points, I do not think any miscarriage of justice has occurred as a result. Consequently I would dismiss the appeal and confirm the conviction against Andane.

There are a number of findings by His Honour concerning Andane based on observation, inference and knowledge of the country which were not disputed during this appeal. I think it is desirable to reiterate part of these findings:

"...I consider that his (Andane's) personality and status among the small community of Highlanders in the Tinputz area must be properly understood in order that a proper assessment of the state of evidence which mainly comes from himself is arrived at. This is of course a question of fact. As I have said, I observed the manner and demeanour of this accused throughout the trial, and also those other co-accused, and their attitudes towards this particular accused. This accused is the only Tari man on the labour line who has some education and is the only one who can speak and understand the Pidgin language. He occupied the position of storekeeper at the Sabag Plantation. I am sure, as far as the labourers are concerned, this is a big position. And he is the only sophisticated man among his group. With such background, he became the link between the management and the labour force at the plantation. From that background it also appeared that he has acquired some status among his tribesmen as a spokesman or even leader. In most societies throughout the Highlands region, leadership is not hereditary. Anyone can emerge to be a leader if he has some wealth, followings and some education and has the inclination to be one. The accused Andane has certainly attracted the confidence of his fellow tribesmen to regard him as a leader. This is clearly shown by the attitudes of the other co-accused at the trial. They appeared submissive to him and regarded him with a certain amount of respect and awe."

In addition His Honour found Andane to be an "untruthful witness". During his evidence in the trial he had recanted on several answers which he had given to the police during his record of interview. His Honour found this recantation to be "an outright lie", and he felt the accused adopted a new approach during the trial because his earlier answers to the police "were damaging evidence which he is attempting now ... to rescue." His Honour also rejected the accused's claim that, contrary to his earlier admissions to the police, he had nothing more to do with the meetings than merely to "put up the notices". Andane denied on oath that he was a leader in the compensation claim and denied he ever suggested to the others that in the event of the compensation payment failing to materialise, a Bougainville man must be killed in order to "end the matter".

As I have said none of these findings was challenged on appeal and I can see no reason to interfere with them. One very curious feature about this trial however stems from the manner in which the cross-examination was conducted. The particular counsel was experienced and mature. It is difficult to avoid the conclusion that what Andane said in the witness box was completely at odds with his instructions to counsel. I have noted especially the following matters:

(1) During the evidence for the State, Tindiwi Kelekele, convicted of complicity in the same murder at an earlier sittings of the court, said: "We killed the man from Buka. We, I mean, Keko, Yanari, Andane." Later on the trial record disclosed the witness as saying: "I don't know accused Andane", which seems proposterous to say the least. Elsewhere in his evidence the witness states: "I believe this man Keko told us to go and kill this man. Andane gave Keko K500 for me to kill the man". Although this evidence was clearly admissible against the witness himself and, subject to clarification of the phrase "I believe", also against the accused Keko, it was clearly not admissible against Andane. As in the leading case of Subramaniam v. D.P.P. (1956) 1 W.L.R. 9651 the apparent conversation with Keko was a relevant piece of evidence to show the state of mind of the witness Tindiwi and a damaging piece of evidence against the co-accused Keko, but was irrelevant to the trial of Andane for it sought to establish by hearsay he very fact that Andane had paid K500 to secure the death. None of this evidence however was either objected to or subject to cross examination by defence counsel. The evidence concerning the K500 of course was inadmissible and does not become admissible merely because counsel failed to object. Nevertheless the matter may still be pursued on appeal, and indeed this has been done.

(2) During his evidence Andane on several occasions retracted statements contained in his record of interview. The record had been admitted unchallenged by defence, no cross-examination was made as to any of the content thereof or its accuracy and it discloses that Andane had actually read the Pidgin version back to himself before he signed it.

(3) The record of interview contains some material most damaging to Andane's case of absolute innocence. There are of course self-serving parts, but the following were noted especially by the learned trial judge (I am using the numbers allocated in the English version):

"A54 WE proposed (my emphasis, and the Pidgin version makes it clear that the pronoun "we" is in the inclusive plural) in the meeting that, if someone from Tari kill any Bougainvillians in Tinputz area. That would pay back for our brother who was killed in 1980 and that would be the end."

"Q56 Was that correct, some of your friends in the meeting proposed to kill someone in village later?

A Yes, at the meeting WE proposed that WE had approached four (4) times...