Monde Manuel v The State (2018) SC1732

• Jurisdiction: Papua New Guinea
• Judge: Batari, J Frank, J
• Judgment Date: 08 November 2018
• Citation: (2018) SC1732
• Docket Number: SCRA No 15 of 2016
• Court: Supreme Court
• Year: 2018
• Judgement Number: SC1732

Full Title: SCRA No 15 of 2016; Monde Manuel v The State (2018) SC1732

Supreme Court: Batari, J Frank, J

Judgment Delivered: 8 November 2018

SC1732

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 15 OF 2016

BETWEEN:

MONDE MANUEL

Appellant

AND

THE STATE

Respondent

Kokopo: Batari, J Frank, J

2016: 14th December

2018: 8th November

CRIMINAL LAW – Appeal - Wilful murder – Conviction – child victim died two days after alleged attack – evidence – death allegedly caused by sorcery – circumstantial evidence – principal witness as an accomplice under coercion and duress - inconsistencies of evidence - reliability of - element of intent – strict proof of – safeness and satisfactoriness of verdict - Whether sufficient evidence to sustain lawful conviction – Conviction against weight of evidence renders conviction unsafe and unsatisfactory.

CONSTITUTION - appeal – right of appeal – appellant – entitlement of to be accorded the right of appeal against conviction and sentence – Constitution s. 37 (15); Supreme Court Act ss. 4, 22, 23, applied.

Facts:

The Appellant was convicted of wilful murder and sentenced to 50 years imprisonment. The trial judge found the Appellant attacked a three-year-old child by twisting and breaking his neck. The child died two days later.

Held: (upholding the appeal) that:

1. A ground of appeal may be dismissed at the outset for failing to set out with sufficient particularity and clarity the issues of law or mixed facts and law for determination. [para.3]

2. In an appeal against conviction, the court should be slow to dismiss a ground of appeal unless it is too general and gives no hint to a wrongful conviction because of the constitutional right to appeal. [para 5, 6]

3. On a wilful murder charge, the essence of a willed act is the state of the mind of the accused person at the time of the act which can be proven by direct evidence of the expressed intention followed by the act itself or by circumstantial evidence: The State v John Kuvis (2012) N4768. [para 26]

4. Where a principal witness for the State may reasonably be suspected as an accomplice, it is conceivable such a witness might reasonably be supposed to have been concerned in the events giving rise to the charges. So, the trial judge ought to warn him or herself of the fragility of such evidence as to its reliability. [para 33, 34]

5. Where the State case rests on the testimony of a witness whose evidence is found to be unreliable, the quality of his/her evidence will unlikely improve unless supported by other independent evidence or incontestable admissions by the accused. [para 45]

6. It is good practice for the trial judge to explain the three options open to the accused person at the end of the prosecution case and let the accused person make a personal election to remain silent, make a statement from the dock or give sworn evidence. The failure to do so may result in substantial miscarriage of justice: Section 572 Criminal Code Act. [para 54, 55, 56, 57]

7. The appeal is upheld; a verdict of not guilty is directed to be entered; the conviction is quashed, the sentence is set aside, and judgment of acquittal entered.

Cited Cases:

Glen Otto Kapahi v The State (2010) SC1023

John Beng v. The State [1977] PNGLR 115

Kokora v. The State [1988-1989] PNGLR 131

Kwame Okyere Boateng v The State [1990] PNGLR 342

Manu Kovi v The State [2005] PGSC 34; SC789

Murray v. The State (2001) SC 668

Nebare Dege v The State (2009) SC1308

Ombusu v The State [1996] PNGLR 335

Paulus Pawa v The State [1981] PNGLR 498;

Paulus Pawa v. The State [1981] PNGLR 498

The State v Fineko [1978] PNGLR 262.

The State v John Kuvis (2012) N4768

The State v Mole Manipe & Ors (1979) N196

The State v Paul Dimon Asilip [2011] N4197

The State v Tom Morris [1981] PNGLR 493;

The State v Wanu [1977] PNGLR 152;

Counsel:

L. Mamu, for the Appellant

P. Kaluwin, for the Respondent

8 November, 2018

1. BY THE COURT: On 22nd June, 2016 the National Court sitting at Kokopo convicted the Appellant of wilful murder and sentenced him 50 years imprisonment. The Appellant appeals against both his conviction and sentence. This judgment is handed down by the remaining members of the Bench (Batari, Ipang & Frank, JJ) with consent of the parties under s 3 of the Supreme Court Act, the third member having passed on.

GROUNDS OF APPEAL

2. The Notice of Appeal contains broadly based ground as follows;

“Appeal against both conviction and sentence. The deceased died 3 days after at the hospital. The sentence is a bit too harsh”.

3. The brevity of this appeal ground is classic example of prisoner in-person appeals. It may be dismissed at the outset for want of detail, clarity and substance. Grounds of appeal must be set out in precise terms with sufficient particulars and clarity to inform the other party, what issues they will prepare to defend at the hearing of the appeal and to clearly inform the Court, the issues of law or mixed law and facts before it for determination.

4. The Appellant may not fully comprehend the full implications of his conviction. The appeal ground in effect, raises the critical issue of causation. This important question of law is apparent on the face of the records which indicates serious evidentiary flaws that ought to be determined on appeal. In the interest of justice and for the reasons following, we granted the appellant leave to be heard.

Right of Prisoner to appeal against conviction

5. The Constitution vests in a convicted person, the right of appeal against conviction or sentence. Section 37 envisages full protection of the law. Sub-section (15) provides, that every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law. Sub-section (16) provides that no person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

6. Sections 4, 22 and 23 of the Supreme Court Act provide the process for giving effect to those constitutional rights. Under s. 4 (1)) an aggrieved person may appeal to the Supreme Court from either a judgment of the National Court or from an appeal to the National Court on a question of law, question of mixed fact and law, or with leave of the Supreme Court on question of facts. Section 23, gives the Supreme Court power to set aside a verdict or conviction on appeal, where the verdict is unsafe or unsatisfactory by reason of an error of law or a material irregularity in the trial.

7. It is trite that the appeal will be only allowed if the verdict is shown to be unsafe or unsatisfactory. In Nebare Dege v The State (2009) SC1308 the Supreme Court stated;

“In respect of s. 23 (1)(a), in State v John Beng [1977] PNGLR 115, the Supreme Court held that on an appeal against conviction pursuant to s. 22 (1) (a) of the Supreme Court Act 1975, (now s 23 (1)(a)), the Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed. This principle establishes that a court of appeal in Papua New Guinea does not allow appeals because it has a mere "lurking doubt", words used elsewhere by other appeal courts. The evidence or conduct of the trial must raise a reasonable doubt as to the safeness or satisfactoriness of the verdict before an appeal is allowed.”

8. We are satisfied, the appellant is entitled to be accorded the right of appeal against his conviction and sentence.

Background.

9. The National Court convicted and sentenced the Appellant following a trial on a wilful murder charge pursuant to s. 229 of the Criminal Code. The prosecution alleged that around midday of 13/5/2014, the Appellant and his companion, Tande Papangai came across three-year-old Noel Maras collecting fruits under a Malayan (laulau) tree while his sister Raina was up in the tree. The Appellant asked Noel for laulau fruits and then attacked the child by twisting its neck. After he dumped Noel on the ground, he revived him again and warned Tande not to tell anyone. Noel survived the attacked but died two days later.

Parties’ Positions

10. At the start of hearing, the Court granted Mr Lesley Mamu of the Public Solicitor’s Office leave to represent the Appellant. Mr Mamu submitted, the circumstantial evidence does not lead to one reasonable conclusion that the Appellant killed the child. Too, the inconsistencies in the State’s case and the inconclusive medical findings on the cause of death did not support a lawful conviction. Counsel also raised the lack of corroborative evidence. On sentence, Mr Mamu submitted, 50 years is excessive and disproportionate to the less serious nature of the killing under the guide in, Manu Kovi v. The State (2005) SC789.

11. Public Prosecutor, Mr. Pondros Kaluwin submitted, the conviction is safe and supported by untainted evidence of an eye witness and corroborated by medical evidence. State’s principal witness, Tande...