Glen Otto Kapahi v The State (2010) SC1023

• Jurisdiction: Papua New Guinea
• Date: 30 April 2010
• Citation: (2010) SC1023
• Docket Number: SCRA NO 22 0F 2002
• Court: Supreme Court
• Year: 2010

Full Title: SCRA NO 22 0F 2002; Glen Otto Kapahi v The State (2010) SC1023

Supreme Court: Injia CJ, Cannings & Kariko JJ

Judgment Delivered: 30 April 2010

CRIMINAL LAW—appeal against conviction—inconsistencies in evidence of State witnesses—whether significant—whether adequately addressed by trial judge—whether defence case adequately addressed—whether guilty verdict unsafe or unsatisfactory.

The appellant appealed against his conviction for armed robbery on the ground that there were material inconsistencies in the evidence of the State witnesses, which made the verdict unsafe and unsatisfactory.

Held:

(1) The mere existence of inconsistencies in the evidence of State witnesses does not necessarily mean that the State’s case should be rejected. However, if there are inconsistencies the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

(2) Here, the State witnesses gave three different versions of the circumstances in which the appellant was apprehended. The inconsistencies in the evidence were significant and the trial judge did not adequately address them. Further, there was a failure to properly address the defence case which under all the circumstances rendered the verdict unsafe and unsatisfactory.

(3) The appeal was accordingly allowed and, a miscarriage of justice having occurred that cannot be more adequately remedied by an order for a new trial, the conviction was quashed and a verdict of not guilty entered.

Cases cited

The following cases are cited in the judgment:

Brian John Lewis v The State [1980] PNGLR 219; Devlyn David v The State (2006) SC881; John Beng v The State [1977] PNGLR 115; Karo Gamoga v The State [1981] PNGLR 443; Paulus Pawa v The State [1981] PNGLR 498; Rimbink Pato v Umbu Pupu [1986] PNGLR 310

APPEAL

This was an appeal against conviction for armed robbery.

30 April, 2010

1. BY THE COURT: Glen Otto Kapahi appeals against his conviction for armed robbery. He and two other accused were convicted by the National Court at Waigani and sentenced to six years imprisonment each over an armed robbery that occurred at the Stop N Shop store at Rainbow, Gerehu on 15 November 2001.

2. The sole ground of appeal argued by the appellant is that the verdict of guilty was unsafe and unsatisfactory as the trial judge incorrectly found it proven that he was apprehended in the motor vehicle that had been used in the robbery a matter of minutes after the robbery took place. He argues that the State witnesses provided three different versions of the circumstances in which he was apprehended and these inconsistencies were not properly addressed by the trial judge who also failed to properly address the appellant’s sworn evidence that he was apprehended and shot by the police at a completely different place. The appellant argues that there was no other evidence linking him to the robbery and he should have been found not guilty.

THE TRIAL

3. The appellant has correctly pointed out that there was no evidence before the National Court linking him to the robbery other than the evidence of three police witnesses as to the circumstances in which he was apprehended shortly after the robbery.

4. The trial judge applied the principles on circumstantial evidence from the leading case of Paulus Pawa v The State [1981] PNGLR 498 and concluded that the proven facts were inconsistent with any reasonable hypothesis other than the guilt of the appellant. The appellant does not take issue with the way in which the trial judge stated or applied those principles; and rightly so. We consider that the trial judge stated the correct principles and applied them to the facts that he found had been proven. The trial judge reached the inevitable conclusion based on those proven facts that they were inconsistent with any reasonable hypothesis other than guilt.

5. The facts that the trial judge found proven were:

• the appellant was the offside front passenger in a black Mitsubishi car driven at high speed from the scene of the robbery in the direction of Gerehu;

• the car was followed by two police units that happened to be in the vicinity, in hot pursuit;

• the...