Titus Makalminja and Tobby Anunau v The State (2004) SC726

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Jalina J, Gavara–Nanu J
• Judgment Date: 03 February 2004
• Citation: (2004) SC726
• Docket Number: SCRA No 34 of 2002
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC726

Full Title: SCRA No 34 of 2002; Titus Makalminja and Tobby Anunau v The State (2004) SC726

Supreme Court: Injia DCJ, Jalina J, Gavara–Nanu J

Judgment Delivered: 3 February 2004

SC726

PAPUA NEW GUINEA

[ IN THE SUPREME COURT OF JUSTICE ]

SCRA NO: 34 OF 2002

BETWEEN:

TITUS MAKALMINJA and

TOBBY ANUNAU

Appellants

AND:

THE STATE

Respondent

Waigani : Injia DCJ, Jalina, Gavara-Nanu JJ

2003 : 26th October,

2004 : 03rd February,

CRIMINAL LAW – Appeal – Supreme Court Act, Chapter No. 37, s.6; - Powers of the Supreme Court to review evidence before the trial judge – Powers of the Supreme Court to make findings of facts upon evidence adduced before the trial judge.

Case Cited:

MVIT v John Etape [1994] PNGLR 596

Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No.2) [1969 – 70] PNGLR 410

Counsel:

S. Siminj for the Appellant

C. Manek for the Respondent

BY THE COURT: The appellants were charged and tried for the murder of one Joe Pexxy, on 21st July, 2002, in Gerehu in the National Capital District. On 19th April, 2002, they were convicted of manslaughter and were each sentenced to 8 years in hard labour.

The appellants are appealing only against their conviction.

The appellants raise three grounds of appeal.

(a) There was inadequate or insufficient evidence to prove beyond a reasonable doubt that the appellants were parties to the assault of Joe Pexxy.

(a) There was inadequate or insufficient evidence to prove beyond a reasonable doubt that the appellants aided or encouraged the unlawful killing of Joe Pexxy.

(a) There was an error in law on convictions in that the alternative charge of manslaughter was not available on the evidence adduced by the State.

Orders sought.

(a) That the appeal be allowed.

(a) The decision of the National Court be squashed, and

(a) The sentence be set aside.

Undisputed facts.

In the evening of 21st July, 2000, the appellant Titus Makalminja and another policeman Thomas Suwibu who were both reserve policemen and appellant Tobby Anunau a regular policeman who were all stationed at the Waigani Police Station met at that police station and decided to go to Gerehu. Appellants Titus and Thomas Suwibu were dressed in police uniforms but appellant Tobby was in civilian clothes as he was off duty at that time.

At about 10.00 pm they arrived at Gerehu stage 4. They wanted to buy cigarettes at a road side tucker shop so they stopped the police van they were traveling in, near the tucker shop. Appellant Titus was driving the police van. While they were waiting, someone threw an empty bottle towards them so Titus drove the vehicle to the direction where the bottle was thrown. They drove into the area and woke the occupants of a house. The owner of the house came out and started talking to appellant Titus and Titus was asking the owner of the house as to who threw the bottle at them. While that was going on, a police Mobile Unit (Mobile Unit) arrived in another vehicle and joined them. The appellants and their friend Thomas then briefed the Mobile Unit members of what happened. Soon after, the deceased was apprehended by the Mobile Unit members while walking along the main road, after he was identified by appellant Titus as the one who threw the bottle. He was assaulted by the Mobile Unit members which contributed to his subsequent death.

Submissions.

Mr Siminji submitted generally that there was no evidence that the appellants had encouraged the Mobile Unit members to assault the deceased, which led to his death. He said, even if there was some evidence against the appellants, it was insufficient for the trial judge to convict them of manslaughter. It was submitted that the trial judge therefore made an error in finding the appellants guilty of manslaughter. Mr Siminji submitted that the conviction was therefore unsafe and should be quashed and the appeal should be allowed and sentences set aside.

Mr Manek on the other hand argued that, there was more than sufficient evidence for the trial judge to convict the appellants of manslaughter, because the appellants not only encouraged the Mobile Unit members to assault the deceased but they themselves also assaulted the deceased. Mr Manek submitted that the conviction was therefore justified. It was submitted that the appellants have not shown any error by the trial judge thus the appeal should be dismissed and the conviction affirmed.

Evidence.

To properly determine this appeal, we need to look at the evidence upon which the trial judge made findings and convicted the appellants of manslaughter. The relevant evidence appear from a number of witnesses called by the State. These evidence are largely uncontested.

The first such witness is Mr John Kakusio. He said, he was sleeping in his house when he was woken by a drunken policeman who went to his house and broke a fibro wall of his house. He said, the fibro wall was broken into pieces and some pieces fell on him an some fell on his child. When he went out of the house to investigate, he met the policeman who broke the wall of his house. He protested to the policeman that his actions were unbecoming of a policeman. While he was talking to the policeman, the other policeman was pointing a gun at him. He identified appellant Titus in Court as the one who broke his wall, and appellant Tobby as the one who pointed the gun at him.

He told the Court that two policemen were in police uniforms, but the other policeman was in civilian clothes.

Mr Kakusio saw the deceased being apprehended by the Mobil Unit members on the main road, as he was walking, after appellant Titus told the Mobil Unit members that the deceased was the one who threw the bottle at them and they must not let him go. He saw the deceased being assaulted by the Mobile Unit members. The deceased was lifted up and held on his two legs and thrown onto the ground twice. Mr Kakusio said, he also saw both appellants assault the deceased.

He saw those from about the distance of 8 meters. He said the lights in his house were off but there was a spot light from the store nearby and that light was shinning onto his area, so he could see what was happening. As the deceased was lying on the ground, he went close to the deceased to identify him and he noticed that the deceased’s neck appeared to be broken. The deceased’s hands and legs were shivering as if he was going into fits. He told the policemen that they should not assault the deceased. At that time he saw appellant Titus went across to the deceased as he was lying on the ground and kicked him on his side quite strongly with his boots. The deceased was lying face down on the ground and was not moving.

The other State witness was Inventor Hitsy, Mr Kakusio’s son. He was sleeping in his house, and when he heard his father talking to the policemen outside, he decided to go out and see what was happening. When he went outside, he was told by the police to put his hands up, and one of the policemen tried to punch him but his father told the policeman that he was his son so the policeman did not punch him. He said the policeman that was talking with his father was drunk. At that point, he saw the deceased walking down on the main road and the other policemen held him. He said the policeman who was drunk and standing and talking with his father told those other policemen that the deceased was the one who threw the bottle, so they must not to let him go.

In Court, he identified appellant Titus as the one who was drunk and standing and talking with his father and was the one who identified the deceased and told the other policemen not let him go.

He saw the deceased being lifted twice and thrown on the ground. He then saw his father and the drunken policeman walk to where the deceased was lying. He saw that from under the lights coming from the spot light from the Chinese store next door. The spot light shone directly onto the deceased, so he could see clearly when the deceased was lifted up twice and thrown to the ground by the other policemen. He confirmed that two of the policemen who came to his yard were in police uniforms but the other one was in civilian clothes.

The other State witness was Thomas Suwibu. He was with the appellants in the night of the incident.

He said, after the deceased was apprehended by the Mobile Unit members, he saw appellant Titus slapping the deceased across the face. He then saw appellant Tobby lift up the deceased and threw him onto the ground once. Appellant Tobby then lifted the deceased from the...