Patrick Towingo, Jeffery Negma, & Benson Gambokoli v The State (2008) SC983

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Manuhu and Yagi, JJ
• Judgment Date: 03 October 2008
• Citation: (2008) SC983
• Docket Number: SCRA 29 OF 2005
• Court: Supreme Court
• Year: 2008
• Judgement Number: SC983

Full Title: SCRA 29 OF 2005; Patrick Towingo, Jeffery Negma, & Benson Gambokoli v The State (2008) SC983

Supreme Court: Kandakasi, Manuhu and Yagi, JJ

Judgment Delivered: 3 October 2008

SC983

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 29 OF 2005

BETWEEN:

PATRICK TOWINGO,

JEFFERY NEGMA, &

BENSON GAMBOKOLI

Appellants

AND

THE STATE

Respondent

Mt. Hagen: Kandakasi, Manuhu and Yagi, JJ.

2008: 30th September

:03rd October

CRIMINAL LAW - PRACTICE & PROCEDURE – Where identification is an issue – Trial judge under an obligation to remind and warn him/herself of the dangers inherent in identification evidence – Failure to consider and apply relevant principles – Effect of – Identification unsafe – Effect of – Conviction unsafe.

CRIMINAL LAW - PRACTICE & PROCEDURE – Functions of trial judges – Duty in trial judge to provide reasons for decision – Trial judge failing to provide reasons for accepting prosecution witnesses as truthful witnesses and ignoring serious inconsistencies in prosecution evidence – Consequence of – Decision arrived at without good reason.

CRIMINAL LAW – Particular offence - Willful murder – Essential elements of – Onus on prosecution to establish each of the essential elements of the offence – State failing to properly establish identity of offender – Alleged motive not properly established and not sufficiently strong to cause alleged offenders to committed the offence - Trial judge failing to consider serious inconsistencies in prosecution’s evidence – Trial judge accepting prosecution evidence as truthful without providing reasons for decision - Effect of – State failing to establish charge beyond reasonable doubt - Conviction unsafe – Conviction quashed – s 209 Criminal Code..

EVIDENCE – Serious inconsistencies in prosecution’s evidence –Trial judge failing to consider and or failing to provide reasons for effectively ignoring inconsistencies in prosecution’s evidence - Prosecution witnesses failing to specify the conduct of each offender - Evidence against accused vague and too general - Effect of – Evidence unreliable.

Cases Cited:

Devlyn David v. The State (2006) SC881.

The State v. Ben Simakot Simbu (No 1) (2004) N2573.

The State v. Thomas Sange,&3 Ors (2005) N2805.

Jimmy Ono v. The State (2002) SC698.

Ombudsman Commission v. Peter Yama (2004) SC747.

In the Matter of Benson Gegeyo, Margaret Misso, Brian Bell and Sir Ravu Henao v. The Minister for Lands and Physical Planning [1987] PNGLR 331.

Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404.

Niggints v. Tokam [1993] PNGLR 66.

Re Application of Louise Autsila Ainie on Behalf of The Rarai Village Ugauga Sub–Clan of Ikoiko Clan, Central Province for Leave for Judicial Review (2004) N2533.

Kelly Yawip v. Commission of Police and The State [1995] PNGLR 93.

Counsels:

Jeffery Negma, for himself and other Appellants.

R. Auka, for the Respondent.

3 October, 2008

1. BY THE COURT: The National Court convicted Patrick Towingo, Jeffery Negma and Benson Gambokoli who are former Appellants for willfully murdering a child, Albert Geri, during the early hours of 15th September 2005, allegedly with the use of a gun to shoot and later throw him into a burning house which they set on fire. At the time of the commission of the offence, the Appellants were members of the Royal Papua New Guinea Police Constabulary. They carried out investigations and eventually arrested three men for the murder of another person who was also a former police officer.

2. The State alleged and the National Court accepted that, the Appellants’ motive for committing the offence was because of the failure to compensate the Appellants for allegedly using unspecified bad language against them by a pastor, James Geri, the deceased father, and had the necessary intention to kill the deceased. In so doing, the National Court decided to accept the prosecution’s witnesses as truthful witnesses despite inconsistencies in their testimonies and without providing any reasons for that decision. Further, the National Court arrived at that decision without the learned trial judge reminding himself of the dangers inherent in identification evidence and applying the relevant principles. In the circumstances, the Appellants argued that their conviction is unsafe by reason of which, they argue that, their conviction should be set aside. On the other hand, the State argues that the conviction is safe and that this Court should not disturb it.

3. On what is before us, it is clear that the main issue is whether the conviction of the Appellants is safe and should not be disturbed. In order to determine that issue, it will be necessary to determine the following subsidiary issues:

(1) Did the State establish on the required standard of proof, the Appellants motive for willfully murdering the deceased?

(2) If the answer to question 1 is ‘yes’, was that motive strong enough to cause the former to kill the deceased?

(3) What is the effect of the learned trail judge’s failure to consider and apply the relevant principles governing the treatment of identification evidence?

(4) Was the learned trial judge obliged to provide reasons for accepting the State’s witnesses as truthful witnesses and effectively choosing to ignore inconsistencies in the State’s witnesses’ testimonies?

(5) If the answer to question 4 is ‘yes’ then, what is the consequence of the learned trial judge’s failure?

4. These issues arise in the context of the State having the overall obligation to establish a charge against an accused on the required standard of proof, which is, prove beyond any reasonable doubt in criminal cases. This, the State must do in respect of all of the essential elements of the offence with which it has charged an accused. It would therefore, be appropriate for us to consider the issues raised by reference to the essential elements the State was obliged to establish beyond any reasonable doubt against the Appellants.

5. So what are the essential elements that the State was required to establish against the Appellants. The State charged the Appellants with wilful murder under s 299 of the Criminal Code. Subsection (1) of that provision creates the offence in the following terms:

“299. Wilful murder.

(1) … a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.”

6. As has been made clear by a number of decisions of both the Supreme and National Courts,

lxvi See for example Devlyn David v. The State (2006) SC881; The State v. Ben Simakot Simbu (No 1) (2004) N2573 and The State v. Thomas Sange,&3 Ors (2005) N2805.

lxvi1 the following are the essential elements of the offence of wilful murder:

(1) A person who:

(2) Unlawfully kills;

(3) Another person; and

(4) With intent to cause his (deceased) death or that of some other person.

7. The first and third elements require an identification of both the offender and the person against whom the offender committed the offence. The second and fourth elements concern a person’s reason or the motivation for the commission of the offence and how that motivation is carried out or translated into action.

Identification of the Appellants as offenders

8. Considering first the issue of identification of the accused as well as the deceased, we note that, there is no issue as to the identity of the deceased, namely Albert Geri a 12 year old child. We also note that, there is no issue that the Appellants were at the scene of the alleged offence. Further, there is no dispute that, the incident took place sometime well after 12:00 midnight and so the place was dark. However, the issue of whether the Appellants where the persons who killed the deceased by shooting him with a gun and later setting fire to three houses and throwing the deceased body into the fire was an issue seriously contested.

9. We remind ourselves that, the law in relation to the issue of identification is well settled in our jurisdiction. A recent statement of the law is in the judgment of this Court in Jimmy Ono v. The State,

lxvii (2002) SC698.

lxvii2 in the following terms:

“The law on identification evidence is settled. The often-cited authorities are the judgments of this Court in John Beng v. The State [1977] PNGLR 115. Just recently Kandakasi, J summarized those principles in an easy to follow manner in The State v. Marety Ame Gaidi (…01/08/02) N2256, in these terms at page 5 to 6 of the judgement:

‘1. It has been long recognised that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a) a convincing witness may be mistaken; or

(b) a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;

4. There should be a specific direction to closely examine the circumstances in which the identification was made;

5....