Daniel Maiyau v the State (2017) SC1644

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Hartshorn J, Kangwia J
• Judgment Date: 21 December 2017
• Citation: (2017) SC1644
• Docket Number: SCRA NO 14 OF 2016
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1644

Full Title: SCRA NO 14 OF 2016; Daniel Maiyau v the State (2017) SC1644

Supreme Court: Cannings J, Hartshorn J, Kangwia J

Judgment Delivered: 21 December 2017

SC1644

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 14 OF 2016

DANIEL MAIYAU

Appellant

V

THE STATE

Respondent

Waigani: Cannings J, Hartshorn J, Kangwia J

2017: 12, 21 December

CRIMINAL LAW – appeal against conviction for attempted murder, Criminal Code, Section 304(a) – whether reasonable doubt about safeness or satisfactoriness of verdict – whether trial judge failed to give effect to presumption of innocence – whether trial judge failed to give effect to requirement that prosecution prove guilt beyond reasonable doubt – whether trial judge erred by regarding body language of accused as admission of guilt – whether trial judge failed to have regard to other rational explanations for accused’s body language – whether trial judge failed to make independent assessment of accused’s witnesses – whether proper assessment made of medical evidence.

This was an appeal against conviction for attempted murder. The trial judge accepted the State’s version of events, which was that after an argument between the appellant and his girlfriend, the complainant, in a nightclub carpark, the appellant deliberately drove his motor vehicle into and over the complainant, with the intention of killing her. The trial judge relied on the evidence of the complainant and three other State witnesses who were in the car park and saw the argument between the appellant and the complainant. The trial judge rejected the evidence of the appellant, who denied driving his vehicle into or over the complainant, his Honour taking the view, based on body language including facial expressions, that the appellant was lying and that other defence evidence, including medical evidence, suggesting other possible causes of the complainant’s injuries, was not persuasive as it was not put to the State’s witnesses particularly the complainant, contrary to the rule in Browne v Dunn (1893) 6 R 67 (HL). The appellant raised six grounds of appeal: (a) error of law by failing to give effect to the presumption of innocence; (b) error of law by failing to insist that the prosecution prove its case beyond reasonable doubt; (c) error of law by treating the accused’s body language and facial expressions as an admission of guilt; (d) error of fact and law by failing to have regard to other rational explanations for accused’s body language; (e) error of fact and law by failing to make an independent assessment of the accused’s witnesses; and (f) error of law by failing to make a proper assessment of the medical evidence. In addition the appellant argued that the complainant’s evidence was impossible to believe and that there were material inconsistencies in the evidence of State witnesses.

Held:

(1) To succeed on an appeal against conviction, an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial, and the Supreme Court must consider that a miscarriage of justice has occurred.

(2) The six grounds of appeal were arguments that the conviction was unsafe and unsatisfactory and entailed wrong decisions on questions of law. All were dismissed as the trial judge: (a) gave effect to the presumption of innocence; (b) did not depart from the evidentiary requirement that the prosecution prove its case beyond reasonable doubt; (c) did not treat the accused’s body language and facial expressions as an admission of guilt; (d) did not err in law by failing to have regard to other rational explanations for accused’s body language; (e) made a proper assessment of the evidence of the accused’s witnesses; and (f) made a proper assessment of the medical evidence.

(3) The argument that the trial judge erred by accepting evidence of the complainant that was “impossible” to believe was based on an opinion unsupported by any evidence; and there was no material inconsistency in the evidence of the State witnesses.

(4) There was no miscarriage of justice, so the appeal was dismissed.

Cases cited

The following cases are cited in the judgment:

Papua New Guinea Cases

Andrew Palili v The State (2006) SC848

Brian John Lewis v The State [1980] PNGLR 219

John Beng v The State [1977] PNGLR 115

Kelly Kai Kapuni v The State (2016) SC1506

Kutau v The State (2007) SC927)

R v Ben Forepe [1965-1966] 329

Rimbink Pato v Umbu Pupu [1986] PNGLR 310

The State v Andrew Sinogup (2015) N5880

The State v Daniel Kapen (2012) N4895

The State v Elias Mautu (2007) N5028

The State v Henry Levo (2015) N5902

The State v James Yali (2005) N2988

The State v Michael Nuli (2011) N4198

Welsh Samor v The State (2014) SC1398

Overseas Cases

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

APPEAL

This was an appeal against conviction for attempted murder.

Counsel

G J Sheppard & P Tabuchi, for the Appellant

T McPhee & C Langtry, for the Respondent

21st December, 2017

1. BY THE COURT: Daniel Maiyau was convicted by the National Court of one count of attempted murder under Section 304(a) of the Criminal Code and sentenced to seven years imprisonment. He appeals against his conviction.

2. The appellant was convicted of the attempted murder of the complainant, Kessie Dulcie Darby at Port Moresby on 16 March 2013. The trial judge found that the State had proven its case, which was that between 4.00 and 5.00 am the appellant and the complainant, then his girlfriend, had an argument in the carpark of the Illusions nightclub, Port Moresby. In the course of the argument, the appellant assaulted the complainant. The complainant walked towards a gate, following the driveway of the carpark. The appellant then got into his Toyota Landcruiser motor vehicle and drove straight at the complainant, hitting her on the back, which caused her to fall to the ground, then he drove over her, causing serious injuries to the head, legs and backbone.

3. The trial judge relied on the evidence of the complainant and three security guards who were on duty in the area of the carpark. The key parts of the trial Judge’s reasoning, resulting in the guilty verdict, are set out in the following passage of his Honour’s oral judgment (obtained from the transcript of proceedings, there being no written judgment):

The prosecution’s evidence was anchored by Kessie Dulcie Darby, the complainant, who, while she was under the influence of liquor, was able to recollect what happened to her at that time. She gave evidence with pictures of injuries she sustained. She also explained all the injuries she sustained and how she sustained them. She gave evidence that when she was hit, she avoided possible death by rolling onto the centre of the driveway to avoid the two sets of tyres going over her. Before she was hit, she said she did not think the accused would run her down as he did. She expected him to stop because she was walking on the driveway and within his view.

The complainant’s evidence is supported by the evidence of security guards of Club Illusion who are unrelated to the accused and the complainant.

The evidence at the end of the State’s case was adequate for the court to lawfully convict the accused for the charge of attempted murder. The accused had to adduce evidence to at least create a doubt in relation to any element of the charge.

The accused’s evidence is consistent with the complainant’s evidence. Relevantly, he does not deny that there was an argument between himself and the complainant at the car park. He does not deny that he assaulted the complainant at the car park. He also confirmed that the complainant, after the assault, walked away along the driveway and that was when his evidence varies. He said that when he drove out, he did not bump or hit the complainant. He merely drove out and then took the freeway to 5 Mile when he stopped at the roadside market and that was when he was apprehended by the club security personnel.

The question for the court is whether the court should believe the complainant or believe the accused. When the accused gave evidence, I noted something I rarely see in court. He appeared to me to be shy or afraid of the audience sitting in court. I could tell from his body language and his facial expressions. He was not comfortable to the extent that during his testimony he had his arms on the bar table and his head was leaning on his right hand. He maintained this position throughout his testimony. I was of the clear impression that he was telling lies. His failure to impress me as a credible witness casts a shadow of doubt over his witnesses, especially, the other security guard who gave evidence about seeing some youths dragging a New Guinea Island female into a dark spot where she was sexually abused.

The defence witness, as well as the two doctors’, evidence were, in any case, adduced unfairly. The defence used these witnesses to support their contention...