Cosmas Kutau Kitawal and Christopher Kutau v The State (2007) SC927

• Jurisdiction: Papua New Guinea
• Judge: Jalina J, Mogish J, Cannings J
• Judgment Date: 22 February 2007
• Docket Number: SCRA NOS 51 & 52 0F 2002
• Citation: (2007) SC927
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC927

Full Title: SCRA NOS 51 & 52 0F 2002; Cosmas Kutau Kitawal and Christopher Kutau v The State (2007) SC927

Supreme Court: Jalina J, Mogish J, Cannings J

Judgment Delivered: 22 February 2007

SC927

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NOS 51 & 52 0F 2002

BETWEEN

COSMAS KUTAU KITAWAL

AND

CHRISTOPHER KUTAU

Appellants

AND

THE STATE

Respondent

Wewak: Jalina J, Mogish J, Cannings J

2006: 26 April,

2007: 22 February

APPEAL

CRIMINAL LAW – trial judge’s findings against the weight of evidence – dying declaration – Evidence Act, Section 20 – rule in Browne v Dunn – whether failure of defence counsel to adhere to rule in Browne v Dunn vitiates an accused’s defences – whether failure to adhere to rule necessarily results in defences being regarded as recent inventions – whether failure to adhere to rule necessarily results in acceptance of prosecution evidence.

CRIMINAL LAW – offence of wilful murder – proof of intention to kill – provocation as a defence – Criminal Code, Section 303.

CRIMINAL LAW – proof of prosecution of common purpose – Criminal Code, Sections 7, 8 and 9.

CRIMINAL LAW – presumption of innocence – burden of proof – standard of proof – variable standards of proof according to nature of offence – duty of trial judge to afford an accused person the full protection of the law.

APPEALS – against conviction for criminal offences – consequences of finding that a conviction was unsafe or unsatisfactory or involved errors of law – miscarriage of justice – substitute verdicts – substitute sentences.

The appellants, a father and son, were convicted by the National Court of wilful murder of a man, by stabbing him in the course of a fight. Both appellants had pleaded not guilty. The father denied stabbing the deceased or being involved in the fight. The son admitted stabbing the deceased, but said he was provoked and only wanted to hurt the deceased and denied that his father was involved. The trial judge dismissed a defence of provocation and rejected most of the defence evidence as being a recent invention as key aspects of it were not put to the State witnesses in cross-examination contrary to the rule in Browne v Dunn. The trial judge accepted the evidence of the main State witness: that both the father and son were involved in the fight and that it was the father who stabbed the deceased. Each appellant were convicted of wilful murder and sentenced to 40 years imprisonment. This was an appeal against conviction and sentence. As to conviction, there were numerous grounds of appeal which focussed on the trial judge’s alleged failure to insist that the prosecution prove its case beyond reasonable doubt; instead, the trial judge had, in effect, placed the burden on the defence to prove innocence. As to sentence, 40 years each was argued to be manifestly excessive.

Held:

(1) The finding that the father stabbed the deceased was against the weight of the evidence; made contrary to Section 20 of the Evidence Act as the trial judge did not give due weight to the deceased’s dying declaration (that it was the son who stabbed him); and overly reliant on one witness who had a number of characteristics tending to diminish his reliability.

(2) There was insufficient evidence to conclude beyond reasonable doubt that either of the accused intended to kill the deceased.

(3) The rule in Browne v Dunn (which requires the accused’s principal defences to be put to the prosecution witnesses in cross-examination) requires that the gist of the proposed defence be put to the State witnesses; not that every detail be put to them.

(4) The requirements of the rule in Browne v Dunn vary according to the circumstances of the case and will be lessened if, in fact, prior notice of the defences or the accused’s version of events has been given to the State in some other form, eg in a record of interview that has been admitted into evidence.

(5) A defence counsel’s failure to adhere to the rule in Browne v Dunn does not necessarily result in the conclusion that all defences are a recent invention, unreliable and should be rejected.

(6) In the present case, the evidence given at trial by both accused (that it was the son who stabbed the deceased and that the father had no involvement in the fight) was consistent with their police records of interview, which formed part of the evidence in the trial. Therefore it was necessary to put only the gist of those defences to the State witnesses.

(7) If there is evidence of a defence such as provocation, the onus is on the prosecution to negative the defence beyond reasonable doubt.

(8) Having established the person physically responsible for killing a person, the trial judge must carefully apply Sections 7, 8 and 9 of the Criminal Code before convicting an accomplice.

(9) If the defence case is rejected for whatever reasons, the State nevertheless still bears the burden of proving all elements of the offence beyond reasonable doubt. Failure to subject the prosecution’s evidence to appropriate scrutiny in such circumstances can result in the trial court reversing the onus of proof, contrary to the presumption of innocence enshrined in Section 37(4)(a) of the Constitution.

(10) In the circumstances the conviction of each accused was unsafe and unsatisfactory, the judgment of the National Court involved wrong decisions on questions of law and miscarriages of justice occurred.

(11) There was insufficient evidence to find the father guilty of any offence and he was acquitted.

(12) An alternative verdict of manslaughter was entered against the son and a sentence of 14 years imprisonment was substituted for the original sentence of 40 years.

Cases cited

The following cases are cited in the judgment:

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L)

Browne v Dunn (1893) 6 R 67 (HL)

Haiveta v Wingti (No 1) [1994] PNGLR 160

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

Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812

Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505

R v Borauda Sem (1964) No 311

R v Brown and Brown [1980] Tas R 61

R v Byczko (No 2) (1977) 17 SASR 460

R v Dogwaingikata Miakawo (1971) No 630

R v Killick (1980) 24 SASR 137

R v Manga-Kitai [1967-68] PNGLR 1

R v Nikola Kristeff (1967) No 445

R v Schneidas (No 2) (1981) 4 A Crim R 101

Rosa Angitai v The State [1983] PNGLR 185

Sidi Adevu v MVIT [1994] PNGLR 57

The State v Albert Gias (2005) N2812

The State v Angela Colis Towavik [1981] PNGLR 140

The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (2002) N2245

The State v Cosmos Kutau Kitawal and Christopher Kutau (No 2) (2002) N2249

The State v David Yakuye Daniel (2005) N2869

The State v John Beng [1976] PNGLR 471

The State v Kevin Anis (2003) N2360

The State v Leah Tununto (1990) N947

The State v Leonard Masiap [1997] PNGLR 610

The State v Matilda Edward (2004) N2726

The State v Michael Nema Melpa (2003) N2450

The State v Misari Warun (1989) N753

The State v Pennias Mokei (No 1) (2004) N2606

The State v Peter Oh Piom Mo [1998] PNGLR 66

The State v Rose Yapihra (1997) N1741

The State v Takip Paine of Dumbal [1976] PNGLR 90

APPEAL

This was an appeal against conviction and sentence for wilful murder.

Counsel

V Narokobi, for the appellants

P Kaluwin, for the respondent

1. BY THE COURT: This is an appeal against the conviction and sentence by the National Court (Kandakasi J) of the appellants, Cosmas Kutau Kitawal and Christopher Kutau, on a charge of wilful murder. They are father (Cosmas) and son (Christopher).

THE NATIONAL COURT PROCEEDINGS

2. Both accused were indicted with wilful murder under Section 299 (wilful murder) of the Criminal Code, which states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

3. It was put to the appellants on arraignment that on the night in question the second co-appellant, the son, Christopher, fought with the deceased at the Kairuru wharf, Wewak. The deceased punched Christopher, who fell on the grass. The first co-appellant, the father, Cosmas, appeared on the scene and stabbed the deceased on the back, penetrating his lung, causing his death.

4. It was alleged that Cosmas and Christopher were angry over another fight the previous night with the deceased, in which the deceased had swung a bottle at Christopher. That made them so angry they started a fight the next night – 7 April 2000 – intending to cause the death of the deceased.

5. The appellants pleaded not guilty.

The State’s case

6. At the commencement of the case for the State three exhibits were admitted into evidence by consent. They were exhibits A, B and C. Three witnesses gave oral evidence. They were Sam Navi, Linus Natio and Ronald Kipma.

Exhibits

7. Exhibit A was a post-mortem report by Dr Joseph Sands on Raymond Ningel, dated 18 April 2000. Dr Sands noted that the deceased was stabbed at the back...