Onama Andrew v The State (2009) SC997

• Jurisdiction: Papua New Guinea
• Judge: Cannings, Gabi & Yagi JJ
• Judgment Date: 03 November 2009
• Citation: (2009) SC997
• Docket Number: SCRA NO 32 OF 2007
• Court: Supreme Court
• Year: 2009
• Judgement Number: SC997

Full Title: SCRA NO 32 OF 2007; Onama Andrew v The State (2009) SC997

Supreme Court: Cannings, Gabi & Yagi JJ

Judgment Delivered: 3 November 2009

SC997

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 32 OF 2007

ONAMA ANDREW

Appellant

V

THE STATE

Respondent

Waigani: Cannings, Gabi & Yagi JJ

2009: 2 July, 3 November

CRIMINAL LAW – admissions in record of interview – whether trial judge has duty to order voir dire if no request for a voir dire is made by defence counsel – whether trial judge should order re-opening of State’s case to allow cross-examination of police investigator – contradictory statements of State witness, Evidence Act Section 22.

CRIMINAL LAW – circumstantial evidence – test to apply when conviction dependent on circumstantial evidence – basing conviction on confession or admissions: need for corroboration.

The appellant was convicted of wilful murder after a trial. There were no eyewitnesses to the killing of the deceased by the appellant but the appellant made admissions in his police interview. The defence counsel allowed the record of interview to be tendered by consent. There was no voir dire conducted. After the close of the State’s case the defence counsel made an application for the State’s case to be re-opened so that the police investigator could be cross-examined. The application was refused. The appellant remained silent and the only evidence for the defence was the appellant’s statement to the District Court during the committal hearing: “What I said to the police is not true”. The appellant was convicted on the basis of the admissions made in his police interview together with the evidence of State witnesses that he was at the crime scene in company with others chasing the deceased and at one stage was carrying a knife. The trial judge ruled that he could be convicted on the basis of his confession (the admissions in the record of interview) as the facts of the case were distinguishable from those in the leading case R v Namiropa Koinbondi [1969-1970] PNGLR 174. The appellant appealed against his conviction on three grounds: (1) a voir dire ought to have been conducted; (2) the trial judge erred in refusing the application for the State’s case to be re-opened; (3) the trial judge erred by disregarding an inconsistency between a State witness’s oral evidence and her statement to the police. In the course of considering the appellant’s submissions, the Supreme Court’s attention was drawn to three major issues which gave rise to the question whether the conviction was safe and satisfactory:

· whether the trial judge adequately addressed the significance of a large part of the State’s case depending on circumstantial evidence;

· whether proper consideration was given to the defence argument that it was unsafe to enter a conviction on the basis of the confession made in the record of interview; and

· whether the trial judge set out the elements of the offence of wilful murder, in particular the requirement for the State to prove an intention to kill.

Held:

(1) The defence counsel notified the court that a voir dire was not necessary, so no error was made by the trial judge in that regard.

(2) The trial judge properly refused the defence counsel’s application for an order requiring the State to re-open its case.

(3) The State witness’s statement to the police was not in evidence and she was not cross-examined on it, so no error was made by the trial judge in giving no weight to it.

(4) Because the State’s case hinged on admissions in the record of interview the trial judge should have applied the principles regarding circumstantial evidence and the principles regarding entering a conviction based on a confession.

(5) His Honour did not apply or mention the principles regarding circumstantial evidence and in that regard an error of law was made. Furthermore, the guilt of the appellant was not the only rational inference to be drawn from the evidence.

(6) His Honour applied the principles regarding entering a conviction based on a confession but failed to note that there was no corroboration of the appellant’s admission that he killed the deceased and took insufficient account of a contradictory statement the appellant made to the police and the appellant’s Section 96 statement to the District Court.

(7) Further, the trial judge did not set out the elements of the offence of wilful murder, in particular the requirement for the State to prove an intention to kill.

(8) Accordingly the verdict of guilty of wilful murder was set aside on the ground that under all the circumstances of the case it was unsafe and unsatisfactory. A miscarriage of justice occurred; and the court ordered a new trial.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2005) SC881

John Beng v The State [1977] PNGLR 115

Paulus Pawa v The State [1981] PNGLR 498

R v McKay (1935) 54 CLR 1

R v Mon and Debong [1965-1966] PNGLR 42

R v Namiropa Koinbondi [1969-1970] PNGLR 174

The State v Malepo (No 2) [1996] PNGLR 252

The State v Thomas Some (1982) N366(M)

The State v Tom Morris [1981] PNGLR 493

The State v Ungum Ovohe (1980) N245

APPEAL

This was an appeal against conviction for wilful murder.

Counsel

O Andrew, the appellant, in person

R Auka, for the respondent

3 November, 2009

1. BY THE COURT: This is an appeal against the decision of the National Court constituted by Justice Mogish to convict Onama Andrew, the appellant, of wilful murder. The appellant was sentenced to life imprisonment but appeals only against his conviction.

THE TRIAL

2. The State’s case was that on 24 May 2006 the appellant was in the company of others at Gerehu Stage 4. They had gathered at a tuck shop owned by a Wabag man to watch a State of Origin match on television. The deceased, Eganda Kane, who was alleged to be drunk, went over to a Goroka lady who was cooking meat to buy some but threw a scone on to the barbeque plate causing hot oil to spill on the lady and others nearby. An argument developed between the deceased and the Goroka lady. Bystanders, including the appellant, joined in and chased Eganda Kane to the front of his house where they stabbed him to death.

3. Two State witnesses gave oral evidence and other evidence for the State consisted of a post-mortem report and an affidavit by Dr Golpak who conducted the post-mortem and the appellant’s record of interview and a ‘confessional statement’ made by the appellant to the police.

4. The defence counsel allowed the record of interview to be tendered by consent. There was no voir dire conducted. After the close of the State’s case the defence counsel made an application for the State’s case to be re-opened so that the police investigator could be cross-examined. The application was refused. The appellant remained silent and the only evidence for the defence was the appellant’s statement to the District Court during the committal hearing that what he had said to the police was not true.

5. The learned trial judge convicted the appellant on the basis of the admissions made in his police interview together with the evidence of State witnesses that he was at the crime scene in company with others chasing the deceased and at one stage was carrying a knife. His Honour ruled that the appellant could be convicted on the basis of his confession (the admissions in the record of interview) as the facts of the case were distinguishable from those in the leading case R v Namiropa Koinbondi [1969-1970] PNGLR 174.

GROUNDS OF APPEAL

6. This is a prisoner appeal and the grounds are not very specific or clear:

1 Introduction of fresh evidence (void dire) in defence of my innocence in the act of w/murder;

2 That the trial judge erred in his discretion by refusing to exercise his discretion when the interest of justice demanded it – under the circumstances at hand; and

3 An introduction of yet another fresh evidence which is marked as Exhibit “B” in this proceedings which is the statement of Helen Tege dated 29/05/2006. (sic)

7. The appellant filed written submissions and it appears that ground 1 relates to the admissibility of the record of interview. It is submitted that a voir dire ought to have been conducted and that the record of interview ought not to have been admitted into evidence. Ground 2 relates to the refusal by the trial judge to order that the State’s case be reopened to allow the defence counsel to cross-examine the arresting officer. Ground 3 concerns an alleged inconsistency between Helen Tege’s oral evidence and her statement to the police.

GROUND 1 – VOIR DIRE AND RECORD OF INTERVIEW

8. The appellant alleged before us that after he and other suspects were arrested two of the other suspects threatened him with violence and as a result he made false admissions to the police that he was the one who killed the deceased. The admissions were included in his record of interview. He argued that there was a conspiracy between the other suspects and the arresting officer to ensure that he was convicted.

9. These allegations were not aired at the trial, however, as the record of interview was admitted into...