Tony Imunu Api v The State (2001) SC684

• Jurisdiction: Papua New Guinea
• Judge: Los J, Sevua J, Kandakasi J
• Judgment Date: 29 August 2001
• Citation: (2001) SC684
• Court: Supreme Court
• Year: 2001
• Judgement Number: SC684

Full Title: Tony Imunu Api v The State (2001) SC684

Supreme Court: Los J, Sevua J, Kandakasi J

Judgment Delivered: 29 August 2001

SC684

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCRA 16 of 2001

BETWEEN

TONY IMUNU API

Appellant

AND

THE STATE

Respondent

Waigani: Los, Sevua & Kandakasi, JJ

2001 : 27th & 29th August

Criminal Law – Wilful murder – Appeal against sentence – Grounds of Appeal raise issues on conviction – Defence of alibi not raised in examination – Rule in Browne v. Dunn.

Criminal Law – Wilful murder – Circumstantial evidence.

Criminal Law – Wilful murder – Sentence – Life imprisonment – Worst type of killing – Comments on a death penalty in serious wilful murder cases.

Cases referred to in judgment:

Paulus Pawa v. The State [1981] PNGLR 498.

The State v. Tom Morris [1991] PNGLR 493.

Barca v. The Queen (1975) 113 CLR 82 at 104; 50 ALJR 108 at 117.

Browne v. Dunn (1893) 6 ER 67.

The State v. Sei Nakiking Tubol & Ors [1994] PNGLR 378.

William Norris v. The State [1979] PNGLR 61.

House v. The King (1936) 55 CLR 499.

Reg v. Taylor [1985] VR 285.

Wanosa v. The Queen [1971-72] PNGLR 90.

Appellant in Person

C. Sambua for Respondent

29th August, 2001

BY THE COURT : The appellant was convicted of wilful murder by the National Court at Waigani on 11th October 2000, and sentenced to life imprisonment on 28th December 2000. He now apeals against sentence, although his grounds of appeal appear to dispute conviction as well.

The notice of appeal filed on 23rd January 2001 is headed “APPEAL AGAINST SENTENCE”. We do not intend to set out the grounds of appeal, suffice it to say that the appellant seems to raise the defence of insanity and the issue of circumstantial evidence.

The facts of the case resulting in the charge of wilful murder were these. The deceased John Sarufa, was a 14 year old, Grade 6 student at Kilakila Community School, who, prior to his death, was recently transferred from Daru in Western Province. On the afternoon of Wednesday, 25th August 1999; he returned home to Kaugere after school when he changed clothes and took K2.00 from his aunt and walked to the shop. He never returned to the house and was subsequently found dead behind the Kenmore City hill near Gabutu on 27th August 1999. When the body was discovered, the deceased had no clothes, and had faeces on his rectum.

The evidence which was circumstantial, was that, on the afternoon of 25th August 1999, at approximately 4 or 5pm, the prisoner was seen by two women, Magi Lare and Kathy Kevin, pulling the deceased by the collar of his shirt from the bus stop at Kaugere towards Gabutu. Both women know the prisoner personally. The deceased went missing since that sighting until found dead, two days later. Basil John, who resides at Gabutu, saw the prisoner between 6 – 7pm that evening walking from the direction of Koki towards his (witness’) house. The prisoner walked past the witness’ house when the witness’ dogs started to bark at the prisoner. The witness observed the prisoner to be shocked and frightened, and suspected that the prisoner must have done something. The witness said the prisoner’s appeared that this was not because the dogs barked at him.

On Friday, 27th August 1999, Inspector John Midi received a complaint from the deceased’s family members about the missing school child. He proceeded to Kaugere where, upon information, the prisoner, known to this witness then as Tony Black was located in a house at Kaugere and taken to Badili Police Station for questioning. Following a short caution administered by Inspector Midi, the prisoner was questioned about the missing boy. At first, the prisoner denied any knowledge of the deceased, however, due to information received, Inspector Midi persisted in questioning the prisoner who eventually agreed to show the Police Officer the location of the deceased.

The prisoner then led Inspector Midi and other policemen in police vehicles to Kenmore City wall near Gabutu at about 9 or 10am. Opposite the Four Square Gospel Church, he told the police to stop. The prisoner then led the police to Kenmore City premises by climbing a fence into that property. Approximately 120 metres from the vehicle, the prisoner located the body of the deceased and said in pidgin, “Boss o, em yia, wampela bodi yia” (Oh, Boss, here is a body). The deceased was observed as lying naked face down with faeces still on his anus. The prisoner was later taken to Boroko Police Station when he was subsequently charged and arrested.

During the brief questioning at Badili Police Station, the prisoner initially raised the defence of alibi. He said, he saw the...