John Karo v The State

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Geita J, Toliken J
• Judgment Date: 31 January 2018
• Citation: (2018) SC1649
• Court: National Court
• Year: 2018
• Judgement Number: SC1649

Full : SCRA No 23 of 2016 & SC REV No 38 of 2016; John Karo & Peter Ripo v The State (2018) SC1649

National Court: Cannings J, Geita J, Toliken J

Judgment Delivered: 31 January 2018

SC1649

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 23 OF 2016 & SC REV NO 38 OF 2016

JOHN KARO & PETER RIPO

Appellants

V

THE STATE

Respondent

Waigani: Cannings J, Geita J, Toliken J

2017: 15 December,

2018: 31 January

CRIMINAL LAW – appeals against conviction for wilful murder, Criminal Code, Section 299(1) – 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 failing to apply principles re convicting on basis of identification evidence – whether trial judge failed to have regard to inconsistencies in the State’s case.

These were appeals against conviction for wilful murder. The trial judge accepted the State’s version of events, which was that the two appellants were amongst a group of five or six men who in the early hours of the morning broke into the house of the deceased and his family, and killed the deceased by chopping him on the back of the neck with a bushknife and shooting him, with the intention of killing him. The trial judge relied on the evidence of the deceased’s wife and daughter who were in the house at the time of the attack, who identified the appellants as being amongst the group and identified one of the appellants as the person who chopped the deceased on the neck. Three grounds of appeal were raised: (1) error of law by failing to give effect to the presumption of innocence and failing to insist that the prosecution prove its case beyond reasonable doubt; (2) error of law by failing to apply the principles regarding identification evidence; (3) errors of fact and law by failing to have regard to material inconsistencies in evidence of the State witnesses.

Held:

(1) The trial judge did not reverse the onus of proof. He applied the correct standard of proof to the elements of the offence of wilful murder. Ground 1 was dismissed.

(2) The trial judge made some errors of law in treatment of the identification evidence, by failing to administer a self-caution regarding the risks involved in entering a conviction based on identification evidence and by failing to fully consider the question of the weight to be attached to evidence of an identification parade. Ground 2 was partially upheld.

(3) The trial judge made some errors of law in treatment of alleged inconsistencies in the evidence of the State witnesses, by failing to identify the alleged inconsistencies and explain why they were regarded as insignificant. Ground 3 was partially upheld.

(4) However the valid points made on behalf of the appellants did not make the verdicts unsafe or unsatisfactory. There was no major error on any question of law that would warrant setting aside the convictions. There was no material irregularity in the trial. There was no miscarriage of justice. The appeals were dismissed.

Cases cited

The following cases are cited in the judgment:

Alois Erebebe & Taros Togote v The State (2011) SC1135

Devlyn David v The State (2006) SC881

Glen Otto Kapahi v The State (2010) SC1023

Gordon Gala Junior v The State (2017) SC1629

Ilai Bate v The State (2012) SC1216

Mark Bob v The State (2005) SC808

Peter Waranaka v Gabriel Dusava (2009) SC980

The State v Henry Osare Kales (2001) N2115

APPEALS

These were appeals against conviction for wilful murder.

Counsel:

T Joseph, a lay advocate, for the Appellants, with leave of the Court

E Thomas, for the Respondent

31st January, 2018

1. BY THE COURT: John Karo and Peter Ripo were convicted by the National Court in a joint trial of one count of wilful murder under Section 299(1) of the Criminal Code. They were each sentenced to life imprisonment. They appeal against conviction.

2. Peter Ripo’s notice of appeal was treated by the Supreme Court Registry as an application for review. His matter was given a Supreme Court review file reference (SC Rev No 38 of 2016), rather than a Supreme Court criminal appeal file reference (such as, in the case of John Karo, SCRA No 23 of 2016). That was a mistake as he, like John Karo, appealed within 40 days after the date of sentence, which is compliant with the appeal period in Section 29 of the Supreme Court Act (Mark Bob v The State (2005) SC808). We deem Peter Ripo’s matter to be an appeal and deal with it in the same way that John Karo’s appeal is dealt with.

3. The appellants were convicted of the wilful murder of Ian Liriope at Tete settlement in the Gerehu area of the National Capital District on 6 November 2003. The trial judge found that the State had proven its case, which was that at 3.00 am the appellants were amongst a group of five or six men who broke into the house of the deceased and his family, and killed the deceased by chopping him on the back of the neck with an axe and shooting him, with the intention of killing him. The trial judge relied on the evidence of the deceased’s wife and daughter who were in the house at the time of the attack, who identified the appellants as being amongst the group and identified John Karo as the person who chopped the deceased on the neck. The appellants gave no evidence at the trial.

4. The key parts of the trial Judge’s reasoning, resulting in the guilty verdicts, are set out in the following passage of his Honour’s oral judgment (obtained from the transcript of proceedings, there being no written judgment):

Serah Liriope, the wife of the deceased, and daughter Bessie Liriope gave sworn evidence for the prosecution. Leo Yapri, police photographer, gave evidence on the photographs. Pato Nanadai Baundo also gave evidence on the identification parade. The identification parade was not contested and has been admitted into evidence. At the end of the trial, the only issue was whether the accused were involved in the attack. Both accused opted to remain silent so that is the issue that the court would have to consider against the evidence adduced by the State.

Relevant to the issue are witnesses Serah Liriope, Bessie Liriope and the identification parade evidence. According to Serah Liriope, she was attempting to escape through the window when the house was broken into, but she was grabbed by four youths who pulled her back into the house. She was then stripped and raped by the youths. While she was being raped, her husband was brought into her room and seated near her head as she was being raped. Then her husband fell onto the floor and she heard no more sound from him. It appears that he had died.

Serah identified the accused John Karo as the person who brought her husband into where she was. She knew John Karo because he was a member of a rugby touch team that the deceased was coach of. Witness, Bessie, was in her room at that time when she heard that her mother was being raped. She said she saw John Karo chop the deceased on the neck and a person by the name of Samuel shot her father three times with a gun then she saw her father being taken to the room where the mother was being raped.

She also stated that Peter Ripo was also there. He held a bush knife. The only lighting in the house was from a hurricane lamp. It was on the table in the living room during the break-in and the attack on the family.

Defence counsel submitted that there were a lot of discrepancies in the prosecution’s evidence as to the order proceeding in the house. It was also submitted that the lighting was not adequate.

I have considered the submissions. I am of the considered view that lighting in the house was sufficient, firstly, for the attackers to carry out the attack on the family and also for the witnesses to see who was in the house. Among the youths were persons that witnesses knew prior to the commission of the crime. The identification evidence of Serah and Bessie is further strengthened by the identification parade evidence. Police witnesses’ credibility was not affected in any way.

I am satisfied that the photographs and the identification were properly taken and properly conducted by the police witnesses. It was during the identification parade that each accused was identified by Serah and by Bessie. The two accused chose to remain silent so the court only has the prosecution’s evidence on identification to determine who was involved in the attack. The court finds that each accused, on the evidence, participated in the attack and the eventual killing of the deceased in the early hours of 6 November 2003. It was John Karo that chopped the deceased on the neck, as the evidence discloses. When this happened, Peter Ripo was there. Samuel shot the deceased with a gun. When this happened, Peter Ripo was also there.

There is no medical certificate of death but there is no dispute that the deceased died at that time and he died during the attack. On...