Korokoro Kanukanu & Pimul Komeao v The State (2020) SC1913

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ & Toliken & Polume-Kiele JJ
• Judgment Date: 06 February 2020
• Citation: (2020) SC1913
• Docket Number: SCRA 28 of 2013
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1913

Full Title: SCRA 28 of 2013; Korokoro Kanukanu & Pimul Komeao v The State (2020) SC1913

Supreme Court: Salika CJ & Toliken & Polume-Kiele JJ

Judgment Delivered: 6 February 2020

SC1913

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 28 OF 2013

BETWEEN:

KOROKORO KANUKANU & PIMUL KOMEAO

Appellants

AND:

THE STATE

Respondent

Waigani: Salika CJ & Toliken & Polume-Kiele JJ

Mt Hagen: 2017: 30th August

Waigani 2020: 6th February

SUPREME COURT – Practice and Procedure – Appeal against Conviction – Principles applicable – Constitution S37(15) – Supreme Court Acts 22 – Supreme Court Rules Order 7 Rules 8, 9 and 10.

Inconsistency between eye-witness evidence and medical report – Whether or not inconsistencies existed – Duty of trial to identify inconsistencies, assess them and give reasons for holding such inconsistencies as significant or insignificant – Failure thereof renders conviction unsafe and unsatisfactory.

MISCARRIAGE OF JUSTICE - Discretion of Supreme Court to dismiss appeal notwithstanding unsafeness and un-satisfactoriness of conviction – No miscarriage of justice – Appeal dismissed – Conviction confirmed.

Cases Cited:

Wili Kili Goiya (1991) PNGLR 170.

John Beng v The State (1977) PNGLR 115

Jimmy Onopia v The State (2002) SC 698

Vali Rocky Mauri v The State (2001) SC 668

Richard Liri v The State (2007) SC 883

Kapahi v. The State 2 [2010] PNGLR 301

James Pari v The State [1993] PNGLR 173

John Beng v The State [1977] PNGLR 115

Brian John Lewis v The State[1980] PNGLR 219

Havila Kavo v The State (2015) SC1450

David v The State (2006) SC881

Counsel:

Mr. L. Mamu, for the Applicant

Mr. J. Kesan, for the Respondent

6th February 2020

1. SALIKA, CJ: INTRODUCTION: The appellants were convicted by the National Court in Goroka on 21 October 2013, on a charge of murder of one Paul Siove. The charge was laid under S300(1)(a) of the Criminal Code Act. They were convicted after a trial and sentenced to 18 years imprisonment (Korokoro) and 17 years imprisonment (Pimul) respectively.

FACTS:

2. The facts as found by the learned trial judge were that on 30 July 2012, Paul Siove in company with three others from his village were at the Goroka main market bus stop waiting for a bus to take them to their village Akameku. While waiting men from Kabiufa village including the 2 appellants started assaulting people from Akameku village. A commotion arose at the market area. During the commotion Korokoro Kanukanu confronted Paul Siove, threw a few punches at him. At the same time, Pimul Komeao came by and said, “kill them”. On his urging more people converged on Paul Siove and kicked and punched him. Paul Siove was eventually lifted up and thrown head first into a deep drain resulting in Paul Siove sustaining a broken neck. Paul Siove was taken to the Goroka Hospital but died.

3. The appeal is without leave and is not required.

GROUNDS:

4. The following are the appellants grounds of appeal:

“1. His Honour erred in law and in fact in believing and placing too much weight on the State’s witnesses and finding their inconsistencies as minor when there were major inconsistencies in their evidence with regard to the assaults received by the deceased and the circumstances in which identification was made that is ignoring the evidence as to the issue of a White Land Cruiser which surfaces at the cross examination.

2. His Honour erred in fact and in law in finding that the Appellants murdered the late Paul Siove by assaulting him when the State’s witnesses evidence regarding assault is inconsistent with the medical report.

3. His Honour erred in law and in fact in finding that the Appellants and others murdered the late Paul Siove by assaulting the deceased and throwing him into the drain when the State’s witness’ evidence regarding the assault is inconsistent with the medical report.”

5. The appeal is against conviction only.

ISSUES:

6. The contentions raised by the appellants is that there were inconsistencies in Nancy Koke’s evidence and the medical report which the learned trial judge labelled as minor were not so minor and that the inconsistencies were major inconsistencies which no reasonable tribunal could brush aside or rely on to convict.

7. The appellants contended further that the oral testimonies of the witnesses were not supported by medical evidence, which in turn rendered it unsafe to convict them.

8. The issues the appellants raise are:

(a) Whether Nancy Koke’s evidence is inconsistent with the medical report?

(b) Whether Nancy Koke’s evidence is inconsistent with the evidence of Pilisive Sio and Mark Gahare?

DEALING WITH THE ISSUES:

9. The learned trial judge said:

“To the contrary I find them credible witnesses despite minor inconsistencies which in my view are insignificant and otherwise are normally expected in any case. These inconsistencies do not affect the overall weight of the prosecution evidence. …”

10. The learned trial judge accepted and preferred the evidence of the State witnesses to that of the appellants and their witnesses. The evidence of Nancy Koke with respect is not inconsistent with the evidence of Pilisive Sio and Mark Gahare. Nancy Koke’s evidence was submitted to be inconsistent with the medical report by the appellant. Nancy Koke gave evidence of the appellant’s Korokoro and Pimul assaulting Paul Siove with others either punching or kicking. There is no evidence from Nancy Koke whether the punches connected to Paul Siove’s body and which part of his body the punches and kicks landed. Counsel for both the State and Defence failed to ask those specific questions of the witness.

11. Defence counsel’s submission at the trial, and on appeal on the major inconsistencies was largely premised on the autopsy report by the medical doctor. The submission is that the medical report reported no external wounds or injury on the face or body therefore evidence of Nancy Koke that Korokoro and Pimul hit or kicked Paul Siove cannot be true or believed. There was only a 4 to 5 centimetre deep laceration to Paul Siove’s left eyebrows. There was nothing wrong with his teeth and there were no wounds and external injuries to his chest. The submission was that Nancy Koke’s evidence was therefore inconsistent with the medical report.

12. With respect the Defence Counsel did not specify and particularise the major inconsistencies between Nancy Koke’s evidence and the medical report or the major inconsistencies between her evidence and that of Pilisive Sio and Mark Gahare.

13. Nancy was never asked where on Paul Siove’s body the punches and the kicks she said she saw inflicted, landed. Nancy never said the punches landed on Paul Siove’s face or chest or mouth? How could her evidence be inconsistent with the medical report as suggested by the appellants counsel when the counsel failed to ask the relevant questions where the punches and the kicks landed on Paul Siove’s body. The submissions in the National Court by the Defence Counsel that Nancy’s evidence was inconsistent with the medical report was therefore misleading and inconsistent with the evidence at the trial.

14. Nancy Koke’s evidence at the trial at the bottom of pages 26 and 37 is that Korokoro went after Paul Siove and “hit him” not with any weapon but with his bare hands. Where his bare hands landed on Paul Siove is not known because Counsel never asked. On page 27 line 23 she said “everybody threw punches at him”. Again where those punches landed on Paul Siove’s body is not known because counsel never asked. “I saw Korokoro hit him” and Pimul Komeao came and said, “kill them, kill them”. On page 28 she said Pimul Komeao kicked him. Again, where on his body Korokoro Kanukanu and Pimul Komeao kicked him is not stated by the witness as the witness was never asked. How then can her evidence given in that way, be said to be inconsistent with the medical report? I do not agree with the submissions advanced by the appellants on that ground.

15. Nancy Koke’s other relevant evidence on page 28 lines 30, 31 and 32 is that she said “they lifted him and threw him into the drain. They threw him head first and the depth of the drain is from where the white paint is down to here”. She was not asked who the “they” are referred to were. Counsel agreed the drain was about 2 meters deep. The base of the drain is cemented with stones. She did not say the head landed on the cement base, although that is the obvious inference to be drawn from her evidence.

16. Defence counsel in submissions suggested that with that kind of evidence, he expected the skull of Paul Siove to be fractured and that there should have been bruises on his body. Defence Counsel had the opportunity to call the concerned Doctor who filed the report to cross-examine him to give an opinion on the evidence. Counsel is not a witness nor a medical doctor to give such an opinion in his misleading submission. Counsel must be careful not to mislead the Court and make or give opinions from the bar...