Rex Paliau v The State

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J, Ipang, & Pitpit, JJ
• Judgment Date: 19 April 2016
• Citation: (2016) SC1537
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1537

Full : Rex Paliau, Brian Paliau, Emmanuel Paliau & Elijah Kilach v The State (2016) SC1537

Supreme Court: Kirriwom, J, Ipang, & Pitpit, JJ

Judgment Delivered: 19 April 2016

SC1537

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 22 OF 2013

SCREV. Nos.47, 48 & 49 OF 2013.

BETWEEN:

REX PALIAU, BRIAN PALIAU,

EMMANUEL PALIAU & ELIJAH KILACH

Appellants

AND:

THE STATE

Respondent

Kokopo & Lorengau: Kirriwom, J, Ipang, &Pitpit, JJ

2015: 28th October

2016: 19thApril

SUPREME COURT – Appeal - Appeal against conviction for wilful murder – Proof beyond reasonable doubt – Evidence not adequate to satisfy conviction for wilful murder – Failure to consider provocation as defence- Self Defence raised under Section 271 of Criminal Code – Not negatived – Reasonable doubts raised–Failure to identify which subsection of s 7 of the Criminal Code the evidence supported – Convictions unsafe and unsatisfactory – Appeals upheld – Convictions set aside – Criminal Code,ss.7, 299 & 271

Facts

The appellants were convicted of wilful murder and sentenced to 20 years imprisonment. They appealed against their convictions contending that the trial judge erred in convicting them of wilful murder when the evidence before the court was such that he could not be satisfied beyond reasonable doubt of their guilt of the charge.

The only issue in this appeal is, after all the evidence in the trial from both the State and the defence was placed before him, regardless of who was telling the truth and who was lying or who the trial judge believed and who he disbelieved, fairly and properly analysed and considered, could His Honour have been satisfied beyond reasonable doubt of the guilt of all the appellants on the charge of wilful murder or even murder?

Held: (upholding the appeals) that-

(a) The entire chain of events leading to the stabbing of the deceased was triggered as the result of provocative acts or deeds (which are undisputed) of the deceased and his drinking friends trespassing into the appellants’ home while under the influence of alcohol, assaulted Rex and Emmanuel, tried to remove private properties like TV, boat and motor and even snatched Emmanuel’s bag and Rex’s mobile phone and took them away. Brian Paliau as father and head of the house was provoked by those very deeds to accept the challenge and went to confront the boys armed only with his torch.

(b) Death resulted because the deceased first attacked Brian Paliau with a weapon described as sickle or a bush knife but Brian ducked and fell down and the sickle missed him, and as he attacked Brian the second time Emmanuel cut him with a bush knife on his chest. Even if the credibility of this story is doubtful, there is no other independent evidence to contradict the appellants’ version except the doctor’s opinion which is merely an opinion based on a hypothetical situation, not on contrary evidence from an eye-witness.

(c) Evidence in the Defence case had cast enough serious doubts on the veracity of the prosecution case such that no reasonable tribunal of fact could safely convict on such evidence.

(d) Trial judge failed to apply his mind to provocation as defence as the motive for Brian Paliau going after the youths concerned as opposed to revenge.

(e) Trial judge paid only lip-service to the defence of self-defence under section 271 of the Criminal Code squarely raised by the defence and not rebutted by evidence to the contrary. Consequently, the State did not negative beyond reasonable doubt self-defence as raised. Even if disbelieved, there were sufficient doubts created that no reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the appellants.

(f) Not one iota of evidence implicating Rex Paliau and Elijah Kilach allegedly seen at the crime scene as far as section 7 of the Criminal Code is concerned. It was not so much a case of circumstantial evidence in that their sighting at the scene was not at the time of stabbing of the deceased but some minutes after the stabbing.

(g) His Honour appears to have misdirected himself on the facts by leaning too heavily in favour of the prosecution theory of the case thereby deprived himself of the opportunity to appreciate the true scenario in the case which stemmed initially from provocation that triggered the confrontation that led to the killing.

(h) His Honour was not all too certain himself in his handling of the trial because at some point in his judgment he appears to be discussing a case of murder and not wilful murder which prompted learned Public Prosecutor to enquire with him at the end of his 30 page judgment to clarify what His Honour’s verdict was for, murder or wilful murder. In the same uncertain manner His Honour stated it was Wilful Murder.

(i) His Honour was obliged to identify or pin-point to the evidence which supported reliance on s 7 of the Criminal Code and the subsection of section 7 of the Code applicable, neither of which he did, at [43-52];

(j) Consequently conviction against each appellant is quashed and set aside and verdict of not guilty is entered.

Full facts are in the judgment.

Cases cited:

Agiru Aieni v Paul T Tahain [1978] PNGLR 37

John Jaminan v The State (No.2) [1983] PNGLR 318.

PLAR No 1 of 1980 [1980] PNGLR 326

R v Kaiwor Ba [1975] PNGLR 90

R v Nikola Kristeff [1967] PGSC 56

The State v Saikoro Norman [1979] PNGLR 599

The State v Sailas Aita Anjipi [2007] N4963 (16 March 2007

Counsel:

P. Bannister, for the State

Appellants, in Person

19th April, 2016

1. BY THE COURT: The appellants appealed against their convictions on charges of wilful murder under s 299 of the Criminal Code. On 25th June 2013, Brian Paliau, Rex Paliau, Emmanuel Paliau and Elizah Kilach were convicted of wilful murder by the National Court here in Lorengau and were each sentenced to twenty (20) years imprisonment. The sentences were imposed on 28th June 2013.

2. The appellants lodged their appeals on 5th August 2013 only days before the expiry date of the time allowed by law to lodge an appeal against the decision.

3. In October 2015 the appellants appeared in Kokopo and prosecuted their own appeals.

GROUND OF APPEAL

4. In their respective notices of appeal the appellants have uniformly grounded their appeal is these terms.

“His Honour erred in convicting me and my co-accused on the charge of wilful murder under Section 299 of the Criminal Code Act when there is insufficient evidence to convict on it. His Honour did not consider the alternative verdict of murder available to him under (sic) Section 539 of the Criminal Code Act and convicted me and my co-accused namely ……..”

5. There is only one ground of appeal which is that His Honour had erred in returning a verdict of guilty of wilful murder when the evidence was insufficient to sustain that charge. And the appellants contend further that His Honour did not even consider the possibility of a murder conviction on the evidence presented before the Court. We address the ground fully in the judgement under the headings Provocation and Self-Defence.

6. We heard counsel on behalf of the State after hearing the appellants’ spokesperson. The appellants were representing themselves. Mr. Bannister for the State strenuously argued that the conviction was supported by evidence and there was no reason or basis for this Court to interfere with the trial judge’s decision. We disagree and our reasons are stated in the judgment.

7. Brian Paliau, as spokesperson, for himself and the other appellants argued that the conviction was wrong because the trial judge failed to fully consider the defence case in the context it was presented in that he was provoked when he went to the place where this incident took place and that Emmanuel Paliau was acting in self-defence when he attacked the deceased Don Siku who struck first but missed him (Brian). And further Rex Paliau and Elizah Kilach were not involved in this trouble at all. He submitted they were therefore wrongly convicted of wilful murder.

GENERAL OBSERVATION BASED ON EVIDENCE IN THE TRANSCRIPT

8. Throughout this trial in the National Court, the trial judge appears to have locked or anchored himself firmly to the position he was invited to by the prosecution to view and treat this entire case. And it starts with the way the State case was placed before the trial judge from the brief facts presented for purposes of arraignment of the accused. We set out verbatim from the Appeal Book:

8.1 “On the night of 5th August 2012, the accused persons all armed with dangerous weapons namely fishing guns and bush knives went to Ward 1 in Lorengau Town. The reason for them going there was to retrieve a bag that was alleged to be owned by Emmanuel Paliau which was allegedly taken by the deceased and other persons.

8.2 State alleged that when they went to Ward 1 they found the deceased and flashed a torch in his face. There Emmanuel Paliau cut the deceased on his chest with a bush knife. When...