Masolyau Piakali v The State (2004) SC771

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Kandakasi J, Lenalia J
• Judgment Date: 13 December 2004
• Citation: (2004) SC771
• Docket Number: SCRA No 34 of 2001
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC771

Full Title: SCRA No 34 of 2001; Masolyau Piakali v The State (2004) SC771

Supreme Court: Sevua J, Kandakasi J, Lenalia J

Judgment Delivered: 13 December 2004

SC771

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 34 of 2001

BETWEEN:

MASOLYAU PIAKALI

Appellant

AND:

THE STATE

Respondent

MT. HAGEN: Sevua, Kandakasi, Lenalia, JJ.

2004: 30th March

13th December

APPEAL - Appeal against conviction and sentence – Principles governing – Issue for trial - Identification – Eye witnesses identifying appellant at scene and identification parade - Not a fleeting glance – Quality of evidence good – Principles governing identification evidence – Trial judge correctly considered and applied them – No identifiable error demonstrated – Appeal dismissed.

CRIMINAL LAW – PRACTICE & PROCEDURE – Handing in of accused by community leaders – Good practice – Evidence of community taking responsibility for law and order – Need to encourage the practice - Evidence of admissible - Effect of such evidence – Presumption in favour of accused being the offender – Onus on accused to demonstrate by credible evidence error in community leaders identification of him as the offender.

CRIMINAL LAW – PRACTICE & PROCEDURE – Presentation of indictments – Authorised officers - Public Prosecutor and State Prosecutors – Presentation of indictment by a lawyer in the employ of the Public Prosecutors office but not a State Prosecutor - Presumption in favour of power or authority to present – Onus on accused to rebut upon presentation of indictment – Failure to object at appropriate stage and in the Court below – Change in role of relevant officer from public prosecutor lawyer to pubic solicitor lawyer after conviction and trial – Issue raised after conviction and sentence and change in officer concerns status from prosecutor to defender – Appellant precluded from raising and succeeding on matter not raised in the trial court - Criminal Code ss. 524 and 525.

Facts:

A lawyer in the employ of the Public Prosecutor’s office employed as a prosecutor but not gazetted as a “State Prosecutor” presented three separate indictments against the appellant and others charging them with three separate counts of wilful murder. The appellant took no issue on the proprietor of the presentation of the indictments and a long trial followed ending up with the appellant’s conviction and sentence of life imprisonment. Following that conviction and sentence, the lawyer who prosecuted the appellant left the employ of the Public Prosecutor and joined the Public Solicitors Office. Meanwhile, the appellant lodged an appeal against his conviction claiming that the evidence, which came mainly from eyewitnesses, identifying him, was not good and was therefore unsafe to convict him. That was despite his community leaders rounding him and his co-accused up and handing them over to the police. Prior to the hearing of the appeal, the appellant added with leave of the court the additional ground of the indictments charging him were defective because the prosecutor was not a gazetted prosecutor within the meaning of ss. 524 and 225 (1) (a) (b) and (2) of the Criminal Code.

Held:

(1) Unless objection is taken and there is evidence to the contrary, there is a presumption in favour of a lawyer in the employ of the Public Prosecutor’s Office having the necessary power and authority to present indictments against an accused person before the National Court for the purposes of s. 524 , 525 and 256 of the Criminal Code.

(2) All objections to the competency of an indictment must be taken upon the presentation of an indictment and a failure to do so amounts to an acceptance as to the correctness of the indictment.

(3) An appellant who has failed to raise an issue or point in the trial Court including, an objection to the competency of an indictment is precluded by his own failure from raising it on appeal particularly after his trial, conviction and sentence.

(4) In the present case, the appellant did not raise the issue of the competency of the indictments against him in the court below. As such, he is precluded from raising it on appeal.

(5) The Supreme Court ought not to interfere with the decision of a sentencing judge where an appellant fails to demonstrate an error or errors on the part of the trial judge.

(6) The Appellant has failed to demonstrate an error or errors on part of the trial judge.

(7) The Courts must and ought to give due weight and consideration to the practice of handing over of suspects by community leaders in order to encourage the communities involvement in the task of

(8) improving law and order unless a person affected by such a practice demonstrates by appropriate evidence that, the village leaders acted without any evidence pointing to the involvement of the person concerned and or his commission of the offence.

(9) The Appellant in the present case did not demonstrate by appropriate evidence that, his village leaders handed him over to police as one of those involved without any evidence pointing to his involvement and or commission of the offences. Further, the appellant did not demonstrate and establish that the learned trial judge erred in acting on the actions of the village leaders which was supported by evidence adduced in Court.

(10) The learned trial judge correctly applied the principles governing identification evidence and acted on good identification evidence, and therefore committed no identifiable error warranting the Supreme Court’s intervention.

(11) For the foregoing reasons, the appeal against conviction and sentence is dismissed with the sentence of life imprisonment confirmed.

Papua New Guinea Cases Cited:

Peter Kirin & KK Farmers v. John Paroda (27/08/04) N2599.

David Colye & 2Ors v. Loani Henao (30/11/00) SC655.

SCR No.1 of 1978 (s.19) [1978] PNGLR. 345.

Smedley v. The State [1980] PNGLR. 379.

In the matter of The State v. The Principal Magistrate, District Court Port Moresby, Ex Parte The Public Prosecutor [1983] PNGLR. 43.

The State v. Esorom Buruge (No.1) [1992] PNGLR 481.

The State v. Pawa Kombea [1997] PNGLR 495.

The State v. Pawa Kombea [1997] PNGLR 495.

Public Prosecutor (Office and Functions) Act of 1980.

Nelson N. Ngasele v. The State (03/10/03) SC731.

The State v. Murray William & 2 Ors. (No 1) (28/04/04) N2556.

The State v. Moki Lepi (30/04/02) N2264.

The State v. Roger Kivini (29/04/04) N2576.

Fly River Provincial Government v. Pioneer Health Services Limited (24/03/03) SC705.

Kepa Wanege v. The State (01/04/04) SC742.

Jimmy Ono v. The State (04/10/02) SC698.

The State v. Tony Pandau Hahuahori (19/02/02) N2185.

State v Anis Noki [1993] PNGLR 426, at 427.

William Norris v. The State [1979] PNGLR 605.

Overseas Cases Cited

CFR v. Parker (1977) V.R.22

R v. Bright and Others (1980) QD. 12 490.

Counsels:

B. Aipe, for the Appellant

R. Auka, for the Respondent

13th December

BY THE COURT: The appellant is appealing against both his conviction and sentence of life imprisonment for wilful murder after a long trial in the National Court sitting in both Goroka and Mt. Hagen on three counts of wilful murder contrary to s. 299 of the Criminal Code.

In his original notice of appeal, the appellant pleaded his grounds of appeal as follows:

“1. I have denied because I was not involved in the scene.

2. Above judge put some points as reasons for decisions which was injustice or unlawful decision made.

3. Motivation (motive?) of appeal you refer to the information attached here-to.

4. I have denied because I was not involved in the scene (Conviction)

5. Motivation (motive?) of appeal you refer to the information attached here-off.

6. Above judge put some points as reasons for decision which was injustice or unlawful decision made.

7. The accused and suspects surrendered to police – Bokom Tabai escaped and warrant of arrest. All other pleaded not guilty.

8. Police station I.D parade was not conducted properly. We the suspect were not put in line with the other mission mates. We the suspects were easily identified because we looked different altogether from the outsides.

9. Surrendered to police and suspects have been given to the police not in sense. We were advised by the Community to talk to police to stop police from raiding the whole community. I was further advised that I with others would be released 3 – 4 days in custody.

10. The unfair – Life Sentence – Court Decision Made By The National Court....