Wesley Yanduo v The State
| Jurisdiction | Papua New Guinea |
| Judge | Batari J,Cannings J,Toliken J,Pitpit J,Lindsay J |
| Judgment Date | 21 February 2023 |
| Neutral Citation | SC2354 |
| Citation | SC2354, 2023-02-21 |
| Counsel | J F Unua, for the Appellant,D Kuvi, for the Respondent |
| Hearing Date | 23 May 2023,21 February 2023,23 May 2022 |
| Docket Number | SCREV NO 103 OF 2018 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCREV NO 103 OF 2018
Wesley Yanduo
Appellant
v.
The State
Respondent
Waigani: Batari J, Cannings J, Toliken J, Pitpit J, Lindsay J
2022: 23rd May
2023: 21st February
CRIMINAL LAW — appeal against conviction for wilful murder, Criminal Code, s 299(1) — identification evidence — whether trial judge properly dealt with alleged inconsistencies in identification evidence of State witnesses.
APPEALS IN CRIMINAL CASES — whether Supreme Court in hearing an appeal should be confined to grounds of appeal relied on by appellant — Supreme Court Act, ss 6 and 23.
This was an appeal against conviction after trial on one count of wilful murder. The State's case was that the appellant, a male adult, killed the deceased, a 14-year-old boy, by attacking him with a bushknife, severing one hand and inflicting other serious injuries, leading to his death. It was alleged that it was an intentional killing that occurred the day after a member of the appellant's community had been killed in a fight with members of the deceased's community. The trial judge accepted the identification evidence of two State witnesses who testified that they saw the appellant, who they recognised, attack the deceased, and found that the evidence of two other State witnesses was consistent with the identification evidence. His Honour rejected the appellant's alibi that he was not present and concluded that the appellant killed the deceased, intending to cause his death. The appellant was sentenced to death, but this appeal was against conviction only. The ground of appeal was that the trial judge failed to identify and address inconsistencies and inadequacies in the evidence of the two identification witnesses, in that his Honour erred in fact and law by not properly assessing: (1) inconsistencies in the evidence of those two State witnesses; (2) inconsistencies between the oral testimony of those State witnesses and statements they made earlier to Police; (3) the unbelievability of the evidence of those two State witnesses.
Held:
(1) (Per Batari J (dissenting)): The Supreme Court is authorised by ss 6 and 23 of the Supreme Court Act, in an appeal against conviction, to review all the evidence that was before the National Court and to make findings of fact and draw inferences from the evidence given in the National Court and to consider all the circumstances of the case, including legal or procedural errors not raised in the grounds of appeal, in determining whether the verdict was unsafe or unsatisfactory.
(2) Here, there were material irregularities in the trial, in that the trial judge unfairly denied the appellant the opportunity to call two witnesses to support the defence of alibi and failed to rule on the alibi defence before assessing the strength of the prosecution case, which had the effect of denying the appellant his constitutional right to a fair trial and led to a substantial miscarriage of justice.
(3) The Supreme Court ought not to allow such fundamental errors to remain uncorrected. The failure of the appellant to raise those errors in his grounds of appeal does not excuse the Supreme Court of its obligation to correct them.
(4) The appeal should be upheld and the conviction quashed and a retrial ordered.
(5) (Per Cannings J, Toliken J, Pitpit J & Lindsay J): If there are inconsistencies in the evidence adduced by the State, it is the duty of the trial judge to identify them, assess their significance and give reasons for regarding them as significant or insignificant. The mere existence of inconsistencies does not mean that the State's case should be rejected. However, an assessment should be made of how significant they are.
(6) There were some inconsistencies in the oral evidence of the identification witnesses. However, these issues were not pressed by defence counsel in cross-examination or closing submissions and were not significant in the context of the evidence of seeing the appellant cut the deceased. It was not incumbent on the trial judge to identify and assess the significance of the inconsistencies.
(7) There were inconsistencies between the oral evidence of the identification witnesses and their witness statements given to the police. These issues were pressed by defence counsel in cross-examination and closing submissions. They ought to have been identified and assessed by the trial judge in the judgment on verdict. The failure to do that was an error of law.
(8) The believability or otherwise of the evidence of the identification witnesses was a matter for the trial judge, who was in a superior position to assess the demeanour of each witness and the credibility of their evidence. No error was made by the trial judge regarding assessment of the believability of the evidence of the identification witnesses.
(9) Though one error of law was made, it was inconsequential as the inconsistencies between the oral evidence of the two identification witnesses and their police statements were insignificant in the context of the trial judge's positive assessment of the honesty, credibility and reliability of their recognition evidence, which was supported by the evidence of the two other State witnesses. The verdict of guilty was not unsafe or unsatisfactory. The appeal should be dismissed and the conviction for wilful murder affirmed.
(10) Ordered (per Cannings J, Toliken J, Pitpit J & Lindsay J; Batari J dissenting): Appeal dismissed and conviction for wilful murder affirmed.
Cases Cited
The following cases are cited in the judgment:
Alois Erebebe & Taros Togote v The State [2011] 2 PNGLR 70
Ambrose Lati v The State [2015] 1 PNGLR 242
Bakeri Pen v The State [1997] PNGLR 289
Brian John Lewis v The State [1980] PNGLR 219
Devlyn David v The State [2006] 1 PNGLR 187
Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No 2) [1969–70] PNGLR 410
Glen Otto Kapahi v The State [2010] 2 PNGLR 301
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
John Karo & Peter Ripo v The State (2018) SC1649
Korokoro Kanukanu & Pimul Komeao v The State (2020) SC1913
Roland Tom v The State (2019) SC1833
The State v John Bosco (2004) N2777
The State v Noutim Mausen [1995] PNGLR 54
The State v Wesley Yanduo (2018) N7524
The State v Wesley Yanduo No 2 (2018) N7596
Titus Makalminja v The State (2004) SC726
Vanimo Forest Products Ltd v Ossima Resources Ltd (2013) SC1275
Wesley Yanduo v The State (2021) SC2183
Counsel
J F Unua, for the Appellant
D Kuvi, for the Respondent
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent
21st February, 2023
1. Batari J: The National Court sitting at Kimbe convicted the appellant of wilful murder on 23 October 2018. He was sentenced to death on 7 December 2018. He has appealed to this Court against his conviction and sentence. This is the hearing on his conviction only.
2. The background to this appeal is set out in the majority decision. In brief, the killing involved two neighbouring factions of settlers at Galai Land Settlement Scheme (LSS) Kimbe, West New Britain Province. One Isaac Vitalas of Section 13 was allegedly killed by settlers from Section 16 on 5 December 2015. The following day, relatives of the late Isaac Vitalas brought the body to Section 16 to demand compensation. During the commotion that followed, the appellant was alleged to have ambushed fleeing youths from Section 13 and attacked Naegel John Las, a 14-year-old boy with a bush knife, causing hand and head injuries. He died shortly after the attack. The appellant was identified as the person who killed the deceased.
3. I have read and reviewed the whole of the trial evidence pursuant to s 6 of the Supreme Court Act. I have also read the draft reasoning of the majority and the proposed outcome of the appeal that the verdict of guilty was not unsafe or unsatisfactory, there was no error on a question of law, there were no material irregularities in the trial and no miscarriage of justice occurred.
4. To the contrary, there are clearly on the face of the record, material irregularities which affected a fair trial the appellant was entitled to under the Constitution. Consequently, a substantial miscarriage of justice occurred. On that basis and for the reasons following, I have the misfortune to disagree with the proposed outcome of the appeal.
5. The irregularities occurred on several aspects of the trial proceedings, the obvious being in the treatment of the appellant's alibi defence and the calling of his witnesses. I will deal with the primary court's considerations of the appellant's alibi defence, first.
6. With respect, the primary court's purported reasoning on the merit and strength of the alibi defence are found at paragraphs 19 to 29 in the written judgment (pp 10 to 20 supplementary appeal book). It is also found towards bottom page 94 to mid-page 99 of the appeal book. I say ‘purported reasoning’ because it is tenuous. There are two aspects to this: (i) The trial judge did not make a specific finding on the alibi defence, though it may be inferred, he did not believe the alibi defence. (ii) substantial part of the discussions was on the “reasons” for upholding the objection against John Yanduo giving evidence.
7. It is trite, where the defence of alibi is raised, the accused person need not prove his or her alibi or innocence on the higher standard of proof. But in practical terms, it is incumbent on the defence to lead some evidence of alibi. Whilst the evidentiary burden is on the accused in that respect, the onus of proof remains on the prosecution throughout: John Jaminan v The State (No 2) [1983] PNGLR 318.
8. The key features of those principles in Jaminan v The State were affirmed by the Supreme Court in Alois Erebebe & Taros Togote v The State [2011] 2 PNGLR 70 as follows:
a) If an alibi is raised the burden of proof does not...
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