Martin Kaiak & Paul Buka v The State (2016) SC1505

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Geita J, Pitpit J
• Judgment Date: 27 April 2016
• Citation: (2016) SC1505
• Docket Number: SC REV Nos 52 & 53 of 2011
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1505

Full Title: SC REV Nos 52 & 53 of 2011; Martin Kaiak & Paul Buka v The State (2016) SC1505

Supreme Court: Cannings J, Geita J, Pitpit J

Judgment Delivered: 27 April 2016

SC1505

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NOS. 52 & 53 OF 2011

MARTIN KAIAK & PAUL BUKA

Applicants

V

THE STATE

Respondent

Mt Hagen: Cannings J, Geita J, Pitpit J

2016: 27th April

CRIMINAL LAW – application for review of conviction for murder – dying declarations, Evidence Act, Section 20 – exception to hearsay rule – whether evidence of State witnesses of alleged dying declaration of the deceased was admissible – whether properly admitted into evidence.

The applicants were convicted after a joint trial of one count of murder and sentenced to 20 years imprisonment. The trial Judge found on the basis of statements made by the deceased to State witnesses on the day of his death – that it was the applicants who assaulted him – that he had indeed been assaulted by the applicants, who intended to cause him grievous bodily harm and who killed him. His Honour also found that the applicants’ alibi evidence was weak, unreliable and false, and corroborated the State’s case. They sought review of their convictions on the ground that they had been convicted on hearsay evidence, which was improperly admitted, as the trial Judge did not apply Section 20 (dying declarations) of the Evidence Act, and that if that evidence had not been admitted, they would have been found not guilty, as there was no other evidence implicating them in the death of the deceased.

Held:

(1) To succeed on a review of a conviction, an applicant must, just as in the case of an appeal against conviction, by virtue of Section 23 of the Supreme Court Act, establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred.

(2) It is incumbent on a trial judge to ensure that hearsay evidence is not admitted into evidence, even where there is no objection to its admission. By doing so the Court is discharging its duty under Section 37 of the Constitution to afford the accused person the full protection of the law, including the right to a fair trial.

(3) Dying declarations are an exception to the rule against hearsay. However, before ruling that a dying declaration should be admitted into evidence it is necessary for the trial judge to rigorously address the preconditions set out in Section 20 of the Evidence Act.

(4) Here the verdict is unsafe and unsatisfactory as the trial judge allowed hearsay evidence to be admitted, without conducing due inquiry into whether the evidence was admissible under Section 20 of the Evidence Act and, without that evidence, the applicants could not lawfully have been convicted. Furthermore, for the same reasons, the convictions entailed a wrong decision on a question of law and there was a material irregularity in the trial. Consequentially there was a substantial miscarriage of justice.

(5) The convictions were quashed and verdicts of not guilty were entered.

Cases cited:

The following cases are cited in the judgment:

Brian John Lewis v The State [1980] PNGLR 219

Charles Ombusu v The State [1997] PNGLR 699

Fred Bukoya v The State (2007) SC887

Ilai Bate v The State (2012) SC1216

John Beng v The State [1977] PNGLR 115

Kutau v The State (2007) SC927

Oscar Tugein v Michael Gotaha [1984] PNGLR 137

Stephen Isaac Awoda v The State [1984] PNGLR 165

The State v Enny Bulen [1990] PNGLR 43

REVIEW

This was an application under Section 155(2) (b) of the Constitution for review of convictions for murder.

Counsel:

L Siminji, for the Applicants

J Kesan, for the Respondent

27th April, 2016

1. BY THE COURT: Martin Kaiak and Paul Buka seek review by the Supreme Court of their convictions for the crime of murder. They were found guilty after a trial at Lae before Justice Gabi of the murder, on 7th June 2008, of an elderly man, Kais Sokam, at Manum village, Huon District, Morobe Province. They were each sentenced to 20 years imprisonment.

LEAVE TO REVIEW

2. At the commencement of hearing this matter the Court discovered that leave to seek review of the convictions had not been granted under Section 155(2)(b) of the Constitution, which states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

3. It was necessary for the applicants to be granted leave to seek review, as they had not lodged their appeals within the time prescribed by the Supreme Court Act.

We granted leave, after hearing submissions from counsel (the State did not oppose leave) and applying the criteria set out by the Supreme Court in Mark Bob v The State (2005) SC808.

THE TRIAL

4. The trial Judge found, on the basis of the evidence of six State witnesses, that the deceased told those witnesses on the day of his death that he had been assaulted, the previous night, by three men. He told them that two of the men were “Martin and Paul” and he did not disclose the identity of the other man.

That was hearsay evidence but the defence counsel raised no objection to it being admitted into evidence. The prosecutor did not seek to rely on Section 20 (dying declarations) of the Evidence Act. And the trial judge did not intervene and ask counsel to address the requirements of Section 20. The issue of Section 20 was raised by the defence counsel in the course of making a no-case submission at the close of the State’s case but still no formal objection was made to the admission into evidence of what the deceased said to the State witnesses on the day of his death. The no-case submission was refused and the applicants gave alibi evidence in their defence.

5. His Honour proceeded to convict them, relying on the Sate witnesses’ evidence of what the deceased told them on the day of his death about “Martin and Paul” assaulting him. His Honour found that it was the applicants who assaulted the deceased the night before his death and killed him, and they had intended to cause him grievous bodily harm. His Honour also found that the applicants’ alibi evidence was weak, unreliable and false, and corroborated the State’s case. Thus were guilty of murder under Section 300(1)(a) of the Criminal Code.

APPROACH TO REVIEWS OF CONVICTIONS UNDER SECTION 155(2) (b) OF THE CONSTITUTION

6. We consider that in hearing an application for review of convictions the Supreme Court should apply the same principles it applies when hearing an appeal against convictions. That is, to succeed in an application, an applicant must establish that:

· the verdict is unsafe or unsatisfactory, or

· the conviction entailed a wrong decision on a question of law, or

· there was a material irregularity in the trial.

7. In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from Sections 23(1) and 23(2) of the Supreme Court Act, which state:

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

GROUND OF REVIEW

8. The applicants seek review of their convictions on the ground that they were convicted on hearsay evidence, which was improperly admitted, as the trial Judge did not apply Section 20 (dying declarations) of the Evidence Act. They argue that if that evidence had not been admitted they would have been found not guilty, as there was no other evidence implicating them in the death of the deceased.

DETERMINATION

9. It is incumbent on a trial judge to ensure that hearsay evidence is not admitted into evidence, even where there is no objection to its admission (Stephen Isaac Awoda v The State [1984] PNGLR 165, Fred Bukoya v The State (2007) SC887). By doing so the Court is discharging its duty under Section 37 of the Constitution to afford the accused person the full protection of the law, including the right to a fair trial.

10. Dying declarations are an exception to the rule against hearsay. However, before ruling that a dying declaration should be admitted into evidence it is necessary for the trial judge to rigorously address the preconditions set out in Section 20 of the Evidence Act, which states:

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