Selman Emos v The State

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, Mogish, Hartshorn, Kangwia & Pitpit, JJ
• Judgment Date: 11 December 2017
• Citation: (2017) SC1658
• Court: National Court
• Year: 2017
• Judgement Number: SC1658

Full : SC Rev 63 & 64 of 2013; Selman Emos and Misialis Emos v The State (2017) SC1658

National Court: Gavara-Nanu, Mogish, Hartshorn, Kangwia & Pitpit, JJ

Judgment Delivered: 11 December 2017

SC1658

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SC Rev 63 & 64 of 2013

BETWEEN:

SELMAN EMOS and

MISIALIS EMOS

Applicants

AND:

THE STATE

Respondent

Kokopo: Gavara-Nanu, Mogish, Hartshorn, Kangwia & Pitpit, JJ

2016: 25 October

2017: 11 December

JUDICIAL REVIEW - Application for judicial review against convictions and sentences – three counts of wilful murder - findings of guilt on each count after trial – maximum penalty of death given to each applicant.

JUDICIAL REVIEW- errors in findings of fact –– uncorroborated evidence of an accomplice – principal witness - dangers of relying on such evidence - failure of the trial judge to warn himself of such danger.

JUDICIAL REVIEW – vital evidence overlooked and not taken into account - Relevant principles of law misapplied - irrelevant considerations taken into account– Applications granted.

Facts

The applicants who are a father (Selman) and son (Misialis) were both charged with three counts of wilful murder. The applicants denied all three charges. The offences were alleged to have been committed on 31 July, 2008, at Tokarkar plantation mangroves near Kokopo, East New Britain Province. The applicants were each convicted of all three counts of wilful murder on 14 November, 2012 after a long trial, they were each sentenced to death on 14 December, 2012.

The State alleged that Selman conspired with a man by the name of Willie in the evening of 29 July, 2008, to kill the three deceased. It was alleged that as a result guns and dinghies were arranged by Willie with the assistance of three other men to kill the deceased.

On the next morning on 31 July, 2012, Selman got on a dinghy at Kokopo beach to go to West Coast, Namatanai. In that boat were the three deceased. According to Selman, soon after the dinghy left Kokopo, it developed engine problems, the sea at that time was very rough and there were strong winds. This is not disputed.

According to Selman, their dinghy sank in the high seas with all its cargo after it was hit by strong currents. He managed to swim to a nearby Island in the Duke of York Islands to seek help. He was rescued near a village called Mareng. The other passengers died in the seas by drowning sometime after Selman left them.

The prosecution on the other hand relied on the evidence of an accomplice who told the Court that he and the men that Selman secured to kill the three deceased, followed Selman and the deceased in another boat on the morning of 31 July, 2012. When they caught up with them in the high seas, the deceased were ordered to return to Tokarkar plantation mangroves near Kokopo. When they arrived there they were all shot dead. The deceased were buried among the mangroves. Selman was then dropped off somewhere near Mareng village where there were rocks, in the dinghy that was used by the three men. The accomplice’s evidence was not corroborated, but this evidence was relied upon heavily by the trial judge to convict the applicants of the charges. The trial judge did not warn himself of the dangers in accepting and relying on the uncorroborated evidence of the accomplice to make findings of guilt.

Held

1. The failure by the trail judge to warn himself of the dangers of accepting and relying upon the uncorroborated evidence of an accomplice to make findings of guilt was a fundamental error of law. Abraham Saka v. The State (2003) SC719, followed.

2. The trial judge either overlooked or ignored crucial evidence which, with closer and proper attention, would have created doubts in his mind as to the guilt of the applicants. This led to the trial judge making findings which were against the evidence and the weight of the evidence. Les Curlewis v. David Yuapa (2013) SC1274 and Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218 followed. House v. King [1936] 55 CLR 499; Micallef v. ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 and Air Marshall MacCormack & Anor v. Vance [2008] ACTA 16, adopted.

3. The trial judge should not have given any weight to the evidence of an accomplice which was not corroborated by any independent evidence. Especially where the evidence was weak and unreliable and marred by inconsistencies: The State v. Joseph Tapa [1978] PNGLR 134 adopted with approval.

Cases Cited:

Papua New Guinea Cases

Abraham Saka v. The State (2003) SC719

Alphonse Tay v. Newcombe Gerau (2011) SC1097

Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru [2002] PNGLR 567

Application by Herman Leahy (2006) SC855

Application by John Madison and Bank of South Pacific Ltd (2009) SC984

Avia Aihi v. The State [1981] PNGLR 81

Avia Aihi v. The State (No.2) [1982] PNGLR 44

Benjamin Sengi v. The State (2015) SC1425

Devlyn David v. The State [2006] PNGLR 187

John Beng v. The State [1977] PNGLR 115

Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218

Les Curlewis v. David Yuapa (2013) SC1274

Private Nebare Dege v. The State (2009) SC1308

Sakai Saraga v. The State (2017) SC1592

The State v. Amoko Amoko [1981] PNGLR 373

The State v. Ben Noel (2002) N2253

The State v. Francis Natuwohala Laumadava [1994] PNGLR 291

The State v. Joseph Tapa [1978] PNGLR 134

The State v. Nataemo Wanu [1977] PNGLR 152

The State v. Selmon Emos (No.2) (2012) N5072

The State v. Tom Morris [1981] PNGLR 493

The State v. Titeve Fineko [1978] PNGLR 262

Overseas cases

Air Marshall McCormack and Anor v. Vance [2008] ACTA 16

Barca v. The Queen (1975) 133 CLR 82

House v. The King [1936] HCA 40; (1936) 55 CLR 499

Micallef v. ICI Australia Operations PTY Ltd & Anor [2001] NSWCA 274

Legislation referred to

Criminal Code

Counsel:

Philip Kaluwin, for the Applicants

Pondros Kaluwin, for the State

11th December, 2017

1. GAVARA-NANU J: I have had the benefit of reading the judgment of Hartshorn J, and I respectfully concur with his Honour’s conclusions. I would nonetheless like to add some observations of my own.

2. The two applicants are a father and son. They were both charged on an indictment that they on 31 July, 2008 at Tokarkar plantation mangroves, Kokopo wilfully murdered Koli Sapau, Neson Koli and Lomki Wanam contrary to section 299 of the Criminal Code. The charges contained three separate counts of wilful murder. The applicants denied all charges. However, they were each convicted of all three counts of wilful murder on 14 November, 2012, by Lenalia J, in Kokopo after a long trial. On 14 December, 2012, they were both sentenced to death. They now apply for review against both their convictions and sentences.

3. Going by their respective records of interview and the respective Information laid against them in the District Court, Selman Emos (Selman) who is the father had his age recorded as 61 years and Misialis Emos (Misialis) who is the son had his age recorded as 31 years. That was in March, 2011. So at the time of the alleged offences, viz 31 July, 2008, they would have been aged about 58 and 28 years respectively. However it is noted that in his evidence in- chief, Selman told the Court that he was aged 56 years after he was asked by the defence counsel if he was aged 65 years. Quite clearly he gave his age as 56 years when correcting the defence counsel whose question suggested that he was 65 years old. That evidence was given on 4 May, 2012. By this evidence Selman’s age at the time of the alleged offences was 52 years. This was not challenged in cross-examination, thus I am inclined to accept that Selman was aged 52 at the time of the alleged offences. This point is important and I will return to it later in the judgment.

4. The learned trial judge relied heavily on the evidence of an accomplice one Kiliaon Kamlapar (Kiliaon) who allegedly witnessed the killings of the three deceased. He was from Kaboman village in West Coast, Namatanai. The applicants come from Kait village also in West Coast, Namatanai. The two villages are not far from each other and Kiliaon and the applicants knew each other before the alleged killings.

5. It is convenient at this juncture to mention that Kiliaon and his family had a long standing grudge towards the applicants even up to the time of the alleged killings. The grudge had its genesis in the eviction of Kiliaon and his family some years prior to the alleged killings from Karias plantation in West Coast, Namatanai, by the police after Selman bought that plantation from its previous owner.

6. It is also important to note that Selman was once the President of the Local- Level Government in his area. This is in my view a relevant matter and is worth noting because it is a matter of public knowledge that persons holding such high and important positions earn high popularity and command respect among the communities of their constituencies. Thus, to me it was not surprising that he had the assistance of the police to evict Kiliaon and his...