PNG Law Reports 1993
[1993] PNGLR 173
SC420
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
JAMES PARI, TINE BOMAI KAUPA
V 
THE STATE
Waigani
Kapi DCJ Ellis Brown JJ
22 April 1991
24-25 June 1991
1 August 1991
20 December 1991
CRIMINAL LAW - Appeal - Evidence - Fresh evidence - Supreme Court Act Ch 37 s 6(1)(a) - Evidence of same witness at trial materially different on appeal - Whether fresh evidence - Principles - Leave granted.
APPEAL - Against conviction and sentence - Evidence of same witness at trial materially different on appeal - Police protection and air-fare expenses not improper - Assessment of reliability of witness on appeal - Whether interest of justice requires retrial.
Facts
The appellants were tried, convicted, and sentenced to life imprisonment for wilful murder of Heather Mitchell. After conviction and sentence, the prosecution eye-witness stated that she was coerced and promised favours to lie at the trial. The nature of her evidence was contained in her affidavit, which explains that she gave three statements to the police. The first statement was given on 6 July 1987 and did not implicate James Pari. The second statement was given on 23 July 1987 and stated that James Pari confessed to the murder of the deceased. The third statement was made on 25 September 1987, and this version was told to the trial court.
Subsequently, the witness went to the media and said that she gave false evidence at the trial. The appellants appealed against their conviction and sentence on the grounds that the evidence given by the eye-witness was contradictory, that she was coerced and promised favours to give evidence for the State against the appellants, and, further, that the evidence was concocted by the police to mislead the court as to the roles played by the appellants. The appellants sought and were granted leave to call fresh evidence from the prosecution eye-witness, Regina Marepo Moria. 
Held
1.       (Per Kapi Dep CJ, Ellis J) Two requirements must be satisfied if fresh evidence is to be admitted on appeal. Firstly, there must be fresh evidence within the meaning of s 6(1)(a) of the Supreme Court Act Ch 37, which means evidence which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Secondly, the court must be satisfied that the justice of the case warrants admission of the evidence.
2.       (Per Ellis J) Section 8 of the Supreme Court Act is not a separate basis for fresh evidence but is merely a machinery provision which is supplemental to s 6 of that act. Any submission or judgment to the contrary effect is wrong in law.
3.       (Brown J dissenting) Evidence which is sought to be tendered in the Supreme Court by a witness who has changed his/her story from the one given at trial is fresh evidence and subject to the following test:
Firstly, was the evidence available at the time of the trial and, if so, was there any good reason why it was not called? Secondly, is the fresh evidence relevant, cogent, and plausible?
4.       (Per Kapi Dep CJ, Brown J) The nature of the fresh evidence, the circumstances surrounding and giving rise to her affidavit, her demeanor in court, the motivation and pressures brought upon the witness to change the story she gave at the trial, and the reasons she gave this Court for those lies, need to be assessed carefully when considering her assertion that her evidence at trial was not the truth.
5.       (Per Ellis J) In the application of fresh evidence, it is not whether the witness was reliable at trial but whether the witness's evidence given on appeal was reliable.
6.       (Per Brown J) The protection and airfare are entirely within the realm of proper expenditure, which does not taint the worth of the witness's evidence for those reasons alone.
7.       (Per Kapi Dep CJ) The proper approach to a claim by a witness that he or she committed perjury at the trial is set out by the High Court in Davies and Cody v R (1937) 57 CLR 170 at 183 and adopted in this case as a proper principle to apply in this jurisdiction.
8.       (Per Ellis and Brown JJ) appeal dismissed.
Cases Cited
Papua New Guinea cases cited
Abiari v The State [1990] PNGLR 250.
Kuri v The State (No 2) (1991) unreported SC414.
Peng v The State [1982] PNGLR 331.
State v Voeto (1978) unreported N134.
Tabe v The State [1983] PNGLR 10.
Other cases cited
Craig v R (1933) 49 CLR 429.
Davies and Cody v R (1937) 57 CLR 170.
Hurley v R (1919) 22 WALR 25.
McGrath v R (1916) 18 ALR 124.
Palmer v R 106 DLR 3d 212.
Queensland v The Commonwealth (1977) 139 CLR 585.
R v Flower [1965] 3 All ER 669; [1966] 1 QB 146.
R v Hullett (1922) 17 Cr App R 8.
R v Kadar (1955) 56 SR (NSW) 1.
R v Kelly (1946) 46 SR (NSW) 344.
R v McDermott (No 1) (1947) 47 SR (NSW) 379.
R v Poulter (1978) 19 SASR 370.
R v Robinson [1917] 2 KB 108.
R v Ryan [1940] St R Qd 170.
R v Stone (1926) 26 SR (NSW) 394.
R v Thomas (1959) 43 Cr App R 210.
R v Townes (1942) 36 QJPR 129.
R v Wakefield [1957] VR 547.
Steele and Phillips v R (1919) 22 WALR 22.
Taylor v R (1918) 20 WALR 47.
Counsel
E Kariko, for the appellants.
G ToWaluta, for the State.
20 December 1991
KAPI DCJ: The appellants were indicted on one count of wilful murder of Heather Mitchell on 5 July 1987 at Lae.
The body of the deceased was found at Mt Lunaman early on the morning of 6 July 1987. The medical evidence shows that the fatal injuries caused to the body were found around the head and neck areas. The following injuries were noted:
"-       blood was found under the dura on both sides of the brain and at base of skull;
-        tissue injury around neck with haematoma (bleeding into tissue) on anterior surface;
-        the trachea was ruptured from thyroid cartilage 6 cm down the trachea;
-        thyroid cartilage and tracheal ring were broken into pieces;
-        internal jugular veins on both sides were ruptured;
-        carotid vessels were bruised and black;
-        cervical spine No 2, 3 were fractured - and dislocated, depressed in."
The medical conclusion as to the cause of death was:
"(a)     sub-dural haemorrhage,
 (b)     asphyxia due to rupture of trachea,
 (c)     respiratory arrest due to fractured cervical spine No 2, 3 which leads to paralysis of diaphragm."
The trial judge convicted the appellants of wilful murder and sentenced them to life imprisonment.
The appellants personally appealed against both conviction and sentence. The grounds of appeal relating to conviction are identical. The most important ground of appeal is "that the evidence given by Regina Moria were contradictory ...". The Public Solicitor later granted legal aid to the appellants and filed a supplementary notice of appeal on behalf of the appellants. Apart from other grounds of appeal, the following grounds were included:
"(h)     that new evidence will show witness Regina Manepo Moria and Janet Kare Gerel were coerced, influenced and promised favours to give evidence for the State against the appellants.
(i)       that the new evidence will show the evidence against the appellants was concocted by the police investigation into the killing of Heather Mitchell, to mislead the court as to the roles played by the appellants."
At the hearing of the appeal on 22 April 1991, the Public Solicitor made an application for leave to call fresh evidence. This was opposed by counsel for the State. The court ruled unanimously that leave should be granted for Regina Manepo Moria to give fresh evidence, but leave was refused in respect of the witness Janet Kare Gerel. With respect, this issue has been decided and cannot be re-opened again. I now give my reasons for this ruling.
The nature of what is fresh evidence has now been settled by the Supreme Court in this jurisdiction. Fresh evidence pursuant to s 6(1)(a) of the Supreme Court Act Ch 37 means evidence which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Such evidence may be admitted on appeal if the court considers that "it is satisfied that the justice of the case warrants it". See Peng v The State [1982] PNGLR 331 and Abiari v The State [1990] PNGLR 250.
The Public Solicitor seeks to adduce fresh evidence within the meaning of s 6(1)(a) of the Supreme Court Act. In this jurisdiction, no case has yet been decided by the Supreme Court where the evidence sought to be tendered in the Supreme Court is by a witness who has given evidence on the trial and desires to change his or her story on appeal. In R v Flower [1965] 3 All ER 669, the Court of Appeal treated the evidence of a witness who gave evidence at the trial and changed the story on appeal as fresh evidence. In R v Poulter (1978) 19 SASR 370 at 376, Bray CJ said:
"Evidence sought to be tendered in the Court of Criminal Appeal by a witness who has given evidence on the trial and decides to change his story has been regarded as a species of fresh evidence and subject to the same tests, e.g. Reg v Flower [1966] 1 QB 146, Reg v Radan [1966] SASR 346 at 348. It may be so, but I think that it possess special features. 
The tests to which I have just referred are as follows. The first question is, was the evidence available to the defendant on the trial and, if so, was there any good reasons why it was not called? See F v Bingapore [1975] 11 SASR 469. The second set of questions relates to relevance, cogency and plausibility, cf In Re Van Beelen's Petition [1974] 9 SASR 163 at 183.
At p 382 Walters J said:
'Two essential criteria for the admission of fresh evidence are, first, that the evidence should be credible in the sense of being worthy of belief, and second, that it should be of sufficient strength that it might reasonably affect the verdict of the jury.'
At p 385, King J did not appear to propound a different test but simply gave a caution. He said:
'I felt, and feel, considerable doubt as to whether we should have allowed Mrs Baker to give evidence. The power to receive evidence on the hearing of an appeal when application for leave to appeal should in my opinion, be exercised with caution. Evidence of a change of story should not be received as a matter of course. Reg v Liosatos [1964] SASR 40, especially at p 43. It seems to me that before evidence is heard, the contents of the affidavit, including the explanation for having given false evidence, should carry some degree of conviction and should give rise to a substantial apprehension of a miscarriage of justice. In this case, we decided that the safer course was to hear the evidence in order to assess its value.' "
I agree that evidence which is sought to be tendered in the Supreme Court by a witness who has changed his or her story from the one given at the trial is fresh evidence and subject to the same tests. I also agree with King J that:
" ... before evidence is heard, the contents of the affidavit, including the explanation for having given false evidence should carry some degree of conviction and should give rise to a substantial apprehension of a miscarriage of justice."
In this case, the appellants had no way of knowing that the evidence given by the witness Regina Manepo Moria was false until she decided to change her story after the trial. The nature of the evidence to be called is given in an affidavit of Regina Manepo Moria sworn on 2 November 1990. This affidavit explains that she gave false evidence at the trial and how she came to give this false evidence. She explains in the affidavit that three statements were given to the police. The first statement was given on 6 July 1987. In this statement, she did not implicate the appellant James Pari. The essence of this statement was that she had no knowledge of the killing of Heather Mitchell. However, she further explains that, after being subjected to pressure and assault by the police, she made another statement dated 23 July 1987. In this statement, she stated that the appellant, James Pari, had confessed to her that he murdered Heather Mitchell. Apparently, the police did not believe this story. According to her explanation, she was taken to the scene of the murder and she was instructed by the police as to what to say with regard to the murder. She also explains that she was assaulted and was offered bribes of money if she gave this false evidence. It was as a result of this that she made the statement dated 25 September 1987 and subsequently told this version to the court at the trial. Some weeks after the trial, the witness, Regina Manepo Moria, said that she gave false evidence at the trial. This was publicised in the media. This evidence is clearly relevant and cogent. The allegations carry some degree of conviction and give rise to a substantial apprehension of a miscarriage of justice. Whether the evidence of this witness is believed or rejected by the appellate court is a different issue. Widgery J in R v Flower [1965] 3 All ER 669 at p 671 said:
"When this court gives leave to call fresh evidence which appears at the time of the application for leave to be credible, it is still the duty of the court to consider and assess the reliability of that evidence when the witness appears and is cross-examined, and this is particularly true where evidence is called in rebuttal before this court."
For these reasons I would grant leave for Regina Manepo Moria to give fresh evidence on appeal.
However, I would refuse leave for Janet Gerel to give fresh evidence on the basis that counsel for the appellants failed to produce any affidavit showing the nature of the evidence she would give. The appellants did not comply with the requirements of O 7 r 60 of the Rules of the Supreme Court.
As a result of this ruling, the court heard evidence from Regina Manepo Moria. The State called Detective Inspector James Kupi, the investigation officer in the case, in rebuttal. 
Before I proceed to deal with the fresh evidence, I would like to make a few general observations.
The nature of the fresh evidence in this case raises a serious allegation of interfering with the course of justice. It raises a deliberate attempt on the part of the police to coach a witness to improve the quality of evidence in order to secure a conviction. In my years as a defence lawyer and a trial judge, it is not uncommon to find these kinds of allegations in this jurisdiction. In some cases, I have found these allegations substantiated, and in others there is no foundation for the allegations. I remind myself of the fact that I need to handle the truth carefully. In a court of law, I can determine the truth only on the evidence before the court. I cannot allow any other consideration to influence my decision.
Therefore, it is important to assess the evidence of witnesses carefully. It is not sufficient to simply gloss over evidence of witnesses and believe or not believe them. There are guide-lines to be followed. For the purposes of this case, I adopt the words of Wilson J in State v Voeto N134 (1978) at p 4:
"In weighing up the evidence of a witness in this trial (as in any trial) I am entitled to take into account his interest, or lack of it, in the result of the case; his demeanour in the witness-box, i.e. the way he gives his evidence (any hesitation, failure to answer, shiftiness or the like); the extent of his literacy (something which is important in a trial such as this); the degree of his sophistication; his manner of testifying; the problems of interpretation; his ability to understand the notions and concepts about which he is called upon to testify; his apparent candour or lack of it; whether he is supported or contradicted by other facts and circumstances which are found to be established on the evidence; and whether his evidence is consistent or inconsistent with other evidence, i.e. whether he has kept to the same story."
As I have already said, I have the right to believe all of the testimony of a witness, or to believe part of it, or to disbelieve it in part, or I may reject it altogether. Remembering the setting of this case and the characteristics of the people, as appears from the evidence and their appearance before me as witnesses, I should believe the evidence which I believe a reasonable person would believe in Papua New Guinea. I do not need to go so far as to say that I should believe only what a reasonable indigenous national would believe; however, I do state that I should do my best to believe what a reasonable person would with an awareness of this country and its people and sensitive of the Constitution of Papua New Guinea and the National Goals and Directive Principles that underlie our Constitution. There is no rule of law which requires me to believe what I would not reasonably believe. In this case, I should believe what I believe to be the truth.
The court needs to assess carefully the motivation, reasons or pressures that may have been brought upon the witness, Regina Manepo Moria, to change the story she gave at the trial.
The evidence of Regina Manepo Moria in this Court can be summarised as follows: On 6 July 1987 she gave a statement to the police. In this statement, she gave an account of events which do not in any way implicate the appellant, James Pari, with the killing of Heather Mitchell. Apparently, the CIB members did not believe her story and took her back to the police station for further questioning. At first, she denied that she knew anything about the killing. However, she specifically made reference to Detective Inspector James Kupi and another policeman by the name of Joe, who hit her on the head with a book and slapped her on the head when she denied the killing. According to her,with this persistent questioning and assaults, she made up a false story to "get them off her back". She made up a story that James Pari picked up Heather Mitchell at her residence and killed her at Bumbu River. She said that he killed her after she struggled when he tried to have sexual intercourse with her. After this statement, Regina took the CIB and the police photographer to Bumbu River, where she pointed out locations of the struggle and the killing. According to her, she was taken back to the police station and she was told that this story was not true. The CIB insisted that she was actually present at the killing and she should tell the truth. She was persistently questioned and threatened and, as a result, she made up another story which is contained in a statement dated 23 July 1987. In this statement, she told the police that the appellant, James Pari, had confessed to her that he went to Heather Mitchell's house and got her and had sexual intercourse with her at different locations and then drove her to a location which was not indicated and killed her. She said James Pari had confessed to her that he had kicked Heather Mitchell several times with his shoes on the neck and got an iron pipe and broke her throat by pressing the iron pipe against her throat. The CIB did not believe this story and, at this point, James Kupi took her to a mountain where a water tank is and he showed her where the killing had occurred and told her that she must tell the court that she had witnessed the killing. She said that James Kupi had briefed her on what to say about the movement of the suspects, what each of them did, and also the names of others who were involved. She was later taken to an Indian police officer, de Silva, and he threatened her with a ruler. Also at this meeting, Mr de Silva said to her that, if she gave evidence of witnessing the killing, she would be protected by the police and that she would be rewarded after the case is over. As a result of these suggestions, the witness then made a statement dated 25 September 1987. It was this evidence which she presented to the court at the trial and upon which the trial judge convicted the appellants. In her evidence before this Court, she stated that the statements made to the police on 23 July 1987 and 25 September 1987 were false. In essence, her evidence was that she gave the evidence at the trial as instructed and directed by the police. In September of 1988, she made complaints to Niugini Nius that she had been bribed and forced to give evidence against the appellants.
Cross-examination of Regina by counsel for the State made no attempt to explore any reason why she changed her story. There is no suggestion that there was any communication between this witness and the appellants to suggest any pressure on her to change the story.
There is also not the slightest suggestion by counsel for the State that the appellants are good friends of the witness Regina and that, out of sympathy for them, she has changed her story to help them out on their appeals.
As a matter of evidence, I cannot allow any such considerations to influence my decision on her credibility.
Having read and re-read her evidence both in examination-in-chief and cross-examination in this Court, two explanations for changing her story emerge. The first is that she was forced to give a false story and that she was promised to be rewarded with money for telling this false story. That this reward was promised by the officer, de Silva. 
Regina's claim that she told false stories to the police was conceded at the trial. It is common ground that her statements of the 6 July and 23 July 1987 were false. The statement of 25 September 1987, which she adopted as the true story at the trial, she now claims is false, was induced by the police, for which she was promised a reward for money by the police.
In assessing whether the witness Regina now tells the truth in this Court, it is important to assess her evidence relating to the reward allegedly promised by officer de Silva. The promise of the reward was never attributed to Inspector James Kupi. He cannot be of any assistance in this regard. However, according to Inspector Kupi, after the appellants were sentenced, Regina came in with two brothers and asked him to compensate her for the evidence given at the trial. Inspector Kupi was cross-examined by the Public Solicitor.
"Q.      After trial in Lae, approached by Regina in prosecutor's office?
A.       Yes.
Q.       What did you say about compensation?
A.       The brothers said - she was valuable - she should be compensated. I referred them to de Silva.
Q.       Why?
A.       He was the administrator so he should know. I told them to come to Port Moresby to follow it up."
Later in his evidence, he stated that Pacific Helicopters bought tickets for the witness, Regina, and her relatives to fly to the police headquarters in Port Moresby to pursue the compensation claims. It is clear that enquiries by the witness for this reward amounted to nothing. Regina became frustrated and, two months after the trial, she went to Niugini Nius and made a public statement that she was bribed by police to give evidence against the appellants at the trial.
The State has produced absolutely no evidence to rebut this. Mr de Silva is presently employed by Corrective Institution Services and was present in Port Moresby at the time of the hearing of the appeal.
The court specifically asked counsel for the State if he was going to call Mr de Silva. He declined to call him and closed the State case in rebuttal. In my view, failure to call this evidence by the State is fatal. I cannot dismiss the evidence of witness Regina out of hand. As I have pointed out, her claim for compensation after the trial is consistent with the reward promised by the officer, de Silva.
I am not impressed with the rebuttal evidence given by Inspector James Kupi. His evidence-in-chief was very brief. He did not address at all the major allegations made by the witness, Regina Manepo Moria. At no stage of his evidence did he challenge her evidence, and at no stage did he suggest to the court that she was lying. In cross-examination, he simply denied certain suggestions that were put to him by the Public Solicitor. I was left with the impression that the witness, James Kupi, was called not to rebut the allegations made by the witness, Regina Manepo Moria, but that the State was simply seeking to rely on him for what evidence of what the co-defendant, Tine Bomai Kaupa, said to James Pari after the sentence was imposed by the trial judge. His evidence was that after the sentence had been imposed, Tine Kaupa was very upset and he shouted at James Pari and alleged that he raped and killed Heather Mitchell. James Pari was upset on hearing this, and he took off his dark glasses, threw them on the floor, and reached for a chair to hit Tine Bomai Kaupa, but the police stopped him.
Counsel for the respondent relied on the statement made by Tine Bomai Kaupa after sentence was imposed, blaming James Pari as responsible for the killing of Heather Mitchell. It is not clear from the evidence of Inspector Kupi whether this incident occurred in the presence of the trial judge or after the trial judge left the court room. My understanding is that this incident occurred after the trial judge left the court room.
The State relied on this as fresh evidence. I would regard the statement of Tine Bomai Kaupa as fresh evidence, in that the statement was made after the trial had concluded and it is relevant to the issue of guilt of the appellants. I can imagine a situation where an accused person makes a confession of guilt subsequent to a trial. That would be strong rebuttal evidence against any claim by the accused on appeal that he is innocent.
On close examination of the statement of Tine Bomai Kaupa, it is not a confession of guilt. First, it is not a confession by him that he was responsible for the killing of Heather Mitchell. In fact, the effect of the statement was that he was not responsible.
Second, it is an allegation that James Pari is responsible. The State could not call Tine Bomai Kaupa on appeal against James Pari. They are co-accused in this case. The only way this statement could be used against James Pari is if he himself agreed with what Tine Bomai Kaupa said. The evidence shows that he was not happy with the statement and wanted to hit Tine with the chair, but the police prevented him. This behaviour cannot be construed as admission by the appellant James Pari that he was responsible for the killing.
As I have stated before, Inspector Kupi gave no evidence about the threats and assaults attributed to him in inducing the statement given by Regina Manepo on 23 July 1987. He also gave no evidence relating to another false story given by Regina, but which was not recorded in the form of a statement. This is the statement where the witness made up the story, took the police to Bumbu River, and indicated that that was the scene of the killing. In cross-examination by the Public Solicitor, Inspector Kupi made reference to Bumbu. In answer to cross-examination by the Public Solicitor, Inspector Kupi indicated that reference was made to Bumbu, that Regina was confused about where they had gone, and that she had mentioned a hill but not indicated the name of it. Further in his explanation, he also indicated that when they took Regina, their first stop was made close to Buimo CIS. All of these answers suggest that there is some truth in what Regina says with reference to the Bumbu story, as well as the fact that she was lying to the police. 
The Public Solicitor further cross-examined Inspector Kupi about whether he instructed Regina as to what to say and the details connected with the killing of Heather Mitchell. Inspector Kupi agreed that he had taken Regina to Mt Lunaman on 23 September and asked questions about the killing. The Public Solicitor called for the notes of this conversation, but Inspector Kupi indicated that the notes of this conversation had gone missing in his diary book. I do not find this explanation very impressive.
I have reached the conclusion that Inspector Kupi knew more than he was prepared to tell the court. I am not prepared to believe him when he said that he had no knowledge of the newspaper report of allegations of bribery by Regina Manepo Moria. According to him, he was not aware of this until the hearing before this Court.
I have also examined the three statements made by the witness, Regina Manepo Moria. Each of these statements is different. The first does not give any evidence of the knowledge of the killing of the deceased person. The second statement concerns an alleged confession by James Pari that he had killed Heather Mitchell. In this story, she does not say that she was present at the killing. The third statement is, again, different because this time she is an eye-witness to the killing of the deceased. It would appear from reading these three stories that there has been an improvement of the quality of evidence against the appellants. No reasonable explanation has been given by the State why this witness would change and improve her evidence in these three statements.
The trial judge reasoned that, at first, this witness denied knowledge because she feared for her life. He concluded that she told the truth when it was safe to do so after the appellants were taken into custody. On close examination of these three statements, this is not so. Although the statement of 6 July 1987 does not refer to the killing, she referred to James Pari driving a white taxi-type car. The next statement of 23 July 1987 is about an alleged confession by James Pari to her. The statement of 25 September 1987 puts her as an eye-witness to the killing. While it may be said that there was a denial on 6 July 1987 and admission of the truth on the killing in the statement of 23 July 1987, there is no reason why she should improve the quality of this evidence by being an eye-witness in the statement of 25 September 1987.
I can understand and appreciate the trial judge's reasoning that Regina was frightened of the appellants and, therefore, did not implicate them in her statement of 6 July 1987. However, she clearly implicated James Pari in her statement of 23 July 1987. The effect of this statement is that he made an admission to her that he killed Heather Mitchell. To be consistent with her explanation, she must have felt safe to implicate the appellant James Pari. Why did she not rest the truth there? How did she come to make the statement of 25 September 1987? This statement was obtained by Inspector James Kupi. Inspector Kupi was cross-examined by the Public Solicitor in this Court on this issue.
"Q.      When you read the second statement, it implicates James Pari?
A.       It was not clear.
Q.       Counsel referred to Appeal Book 2, page 184 (Statement of 23 July 1987) pars 5 and 6 - This implicated James Pari?
A.       Yes.
Q.       Counsel referred to Appeal Book 2, p 182 (Statement of 6 July 1987) par 5 - This refers to James Pari?
A.       Yes.
Q.       6th July statement refers to James Pari?
A.       Yes.
Q.       If the statement at p 184 refers to James Pari, why did you get a second statement?
A.       The evidence given was not enough.
Q.       Whose idea was it to get the third statement at p 186?
A.       It was my idea to get the third statement.
Q.       How long have you been in the police force?
A.       17-18 years. 14 years in criminal investigation.
Q.       Paragraphs 5 and 6 on p 184 - was good evidence?
A.       No."
It can be taken from this that Inspector Kupi was not content with the statement of 23 July 1987 and was going to get good and better evidence from Regina. He confirmed in cross-examination that it was his idea to get a third statement from her. This evidence is consistent with Regina's evidence in this Court that CIB did not believe her statement of 23 July 1987 and put pressure on her to tell the truth, as she must have been present at the killing.
Her explanation is that she was induced to tell this false story and was promised to be rewarded for telling it. The critical question is: Can I believe her story in this Court? I bear in mind all the facts which I have outlined in my opinion. In particular, the consistency of the claim of bribery by police. She made this claim publicly two months after the trial. Counsel for the State chose to ignore this evidence. No evidence was called from the police headquarters. It is clear that Regina and her relatives were referred to the police headquarters by Inspector Kupi. No evidence was called from Pacific Helicopters, who, according to Inspector Kupi, bought tickets for them to come to Port Moresby. Company officials might have clarified the nature of the compensation claim by Regina. The most important witness not called was Officer de Silva. I was surprised. Why did not the State call this witness? I can only assume that this witness could not have assisted the court on the truth of this allegation.
Having regard to all these matters, I have reached the conclusion that Regina told the truth when she said that the story she gave at the trial was false.
What follows from this? I consider that the proper approach to a claim by a witness that he or she committed perjury at the trial is set out by the High Court in Davies and Cody v R (1937) 57 CLR 170 at 183:
"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases."
I would adopt this as a proper principle to apply in this jurisdiction. The exception to the rule is:
"But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases ..."
The question then arises whether the fresh evidence of Regina, which I believe, would affect the verdict of guilty against both appellants? As indicated above, there is no universal rule. It all depends on the fact of each case. The nature of the fresh evidence in this case goes to the very foundation of conviction. This is a case where, if the fresh evidence is believed, the conviction ought to be quashed.
The State case against both appellants at the trial consisted of:
1.       background evidence,
2.       eye-witness account of the actual murder, and
3.       scientific evidence.
Background evidence was given to implicate the appellant, James Pari, of his connection with the deceased on 4 July and the morning and afternoon of 5 July 1987. He was identified as visiting the deceased at her residence. This evidence was given by James Henomo, a security officer at the deceased's residence. Diane Gaiware and her sister, Melanie Gaiware, who knew the deceased Heather Mitchell well, gave evidence of seeing her being driven by a national in a white station wagon between the hours of 10.00 am to 10.30 am on 5 July. The same car was again seen by them in the afternoon between 3.30 pm and 4.00 pm. These two witnesses saw a national man driving past. At no stage did they stop or have a longer look than a few seconds as the vehicle drove past. They later identified the national driving the vehicle as James Pari. Janet Kare Gerel gave evidence about what happened on the evening of 5 July 1987. She gave evidence of James Pari coming over in a white taxi car and subsequently picking up several people and drinking beer.
The trial judge, in dealing with this background evidence said:
"There is the evidence of Janet who merely confirms part of Regina's evidence namely, the evidence of later on that night. Other witnesses in the case merely give background material on interviews or knowing the accused or on the investigation. This other evidence does not prove guilt. It is merely background evidence which is not necessarily critical to proving who did the crime."
This is significant because it illustrates that this evidence does not provide the basis for identifying both appellants as the offenders.
As to the scientific evidence, the trial judge said:
"There is scientific evidence but unfortunately this does not really prove anything because there were defects in the way it was obtained and sent."
If the fresh evidence of a witness is not believed (as in this case by the majority), the proper approach to the determination of the appeal is carefully analysed by Bray CJ in R v Poulter (1978) 19 SASR 370 at 377:
"But is that the end of the question? In Flowers's case the Court of Appeal in England seems to have thought that it was. They found themselves in a position where they could say that the changed evidence of the witness before them was untrue and accordingly they rejected it and dealt with the appeal as if it had never been given.
There may be cases where this is the proper course. It is not, however, the state of mind in which I find myself. I am satisfied that Mrs Baker is an unreliable witness, but I am quite unable from the material before me to form any opinion whether her evidence at the trial is true or whether her evidence before us is true or whether neither version is true."
The learned Chief Justice then analyses the judgment of the High Court in Davies and Cody v R (1937) 57 CLR 170, from which he reached the above proposition.
This is not an appropriate case in which the proposition expressed in Flower's case ought to apply. That is to say, the fresh evidence which is not believed should be rejected and the appeal should be dealt with as if the fresh evidence had never been given. In this case, not only the majority has found Regina's fresh evidence to be false, she has shown herself in the trial to have handled the truth very lightly. She gave a false statement to the police on 6 July 1987. Then she gave another false story to the police on 23 July 1987. On 25 September 1987, she gave yet another story which forms the basis of the testimony at the trial. On this appeal, she gives a totally different story, which is not believed by the majority.
I ask myself: Can the evidence given at the trial be true as against these false stories she has given to the police and to this Court? The State's case falls or stands on the evidence of this witness. In view of the false stories she has given, including the story given in this Court (according to the majority), I am compelled to find that it would be highly dangerous to confirm the conviction against the appellants on the evidence of a witness who has no proper regard for the truth. The convictions are, therefore, unsafe and unsatisfactory.
I would allow the appeal, quash the convictions and sentence, and send the matter back to the National Court for a re-trial.
ELLIS J: Heather Mitchell was brutally murdered at Lae on 5 July 1987. Following a trial which commenced on 15 July 1988, the present appellants were convicted of wilful murder on 22 July 1988 and were sentenced to life imprisonment.
The initial notices of appeal contained the usual vague allegations of insufficient evidence, failure to properly consider the evidence, and that the sentence of life imprisonment was manifestly excessive. A fourth ground of appeal suggested that the evidence of Regina Manepo Moria was contradictory.
A supplementary notice of appeal, filed by the Public Solicitor on behalf of both appellants on 18 October 1990, raised additional grounds in relation to the identification evidence, the identification parade, admissibility of evidence, and a suggestion of "new evidence".
This application was based upon a suggestion that there was "new evidence" from witnesses Regina Manepo Moria and Janet Kare Gerel. Six months after that allegation was raised in the supplementary notice of appeal and almost four years after the trial, there was no affidavit or other document setting out the "new evidence" of Janet Kare Gerel. Accordingly, the application was rejected so far as it was based upon Janet Kare Gerel.
Although "dressed up" as an allegation of Police misconduct, the so-called fresh evidence of Regina Manepo Moria was, in reality, no more than a claim by her that she had given false evidence during the trial of the two appellants.
This Court agreed to hear the fresh evidence of Regina Manepo Moria since it appeared unfair to consider such an application without knowing the details of that evidence. After that evidence and rebuttal evidence was led, submissions were heard on that and the other issues raised by these appellants, and it is now necessary to set out my decision and reasons on the fresh evidence aspect of this appeal.
I first consider the law on the issue of fresh evidence following a criminal trial conviction. The relevant local decisions on this issue are three Supreme Court cases: Peng v The State [1982] PNGLR 331; Abiari v The State [1990] PNGLR 250, and Kuri v The State (No 2) unreported SC414 (1991).
Kuri v The State (No 2) was a unanimous five-member Supreme Court decision. That decision rendered the two-one majority decision in Abiari v The State judicially "deceased". Neither I nor any other judge can now attempt to resurrect that view since, as Gibbs J so aptly put it in Queensland v The Commonwealth (1977) 139 CLR 585 at 599:
"No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the court. A Justice, unlike a legislator, cannot institute a programme of reform which sets at nought decisions formerly made and principles firmly established."
Accordingly, the decision in Kuri's case not only laid to rest the majority decision in Abiari's case, it confirmed the joint three-member decision in Peng's case, which was delivered some eight years prior to Abiari's case. The result is that it is now clear beyond argument that s 8 of the Supreme Court Act is not a separate basis for fresh evidence but is merely a machinery provision which is supplemental to s 6 of that act. Any submission or judgment to the contrary effect is wrong in law.
By reason of the provisions of s 6(1)(a) of the Supreme Court Act and the decisions in Peng's case and Kuri's case, it may now be said that two requirements must be satisfied: that there is "fresh evidence" and "that the justice of the case warrants it". For reasons which will presently appear, I am abundantly satisfied in the present case that the second of those tests is not satisfied in that the justice of this case warrants confirmation of the convictions.
Having heard the evidence which is said to constitute fresh evidence, what should the court's approach be ? Guidance is to be found in the decision in R v Flower [1966] 1 QB 146, which involved a similar situation to that raised in the present case, namely an allegation that a State witness had given false evidence by reason of police pressure. The judgment of the court, delivered by Widgery J, is worth quoting in full on this issue: 
"When this Court gives leave to call fresh evidence which appears at the time of the application for leave to be credible, it is still the duty of the court to consider and assess the reliability of that evidence when the witness appears and is cross-examined, and this is particularly true where evidence is called in rebuttal before this court.
Having heard the fresh evidence and considered the reliability of the witness, this court may take one of three views with regard to it. First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the court can, and no doubt ordinarily would, quash the conviction. Alternatively, if not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial. The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility, namely, that this Court, having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had not been tendered.
It is contended before us by Mr McKinnon that different considerations arise where the fresh evidence consists of a witness going back on the account which he gave at the trial as opposed to a fresh witness who was not called at the trial at all. Mr McKinnon contends that, even if we were utterly to disbelieve the evidence which Mrs Brown gave in this Court, we ought still to order a new trial because it would have been established that she was an unreliable witness and the jury, so he says, should be given an opportunity to reconsider her evidence in this light. It is to be observed that if that is the correct approach the function of this Court in assessing the credibility of fresh evidence largely disappears, and, if any key witness has second thoughts after the trial, a quashing of the conviction would be almost bound to follow, because if this Court believes the witness it would itself be bound to set the conviction aside, whereas if it disbelieves the witness it would have to send him back discredited, with a view to his being disbelieved by the jury at a new trial. If the witness's new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness's state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time. It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness's account in this Court differs from that given in the court below."
The South Australian decision in R v Poulter (1978) 19 SASR 370 suggests that an appellant may be permitted to call fresh evidence, the nature of which is to recant, on appeal, from evidence given in a trial which led to a conviction. Each of the three judgments in that case sets out sensible criteria for consideration in a case such as this. They may be summarised as follows:
.         Was the evidence available at the time of the trial?
.         If so, why was it not led?
.         Is the fresh evidence plausible and reliable?
.         What reason is advanced for the falsity of the evidence at trial?
.         Is the fresh evidence such that it might reasonably have affected the result at trial?
Obviously, an unsatisfactory answer to any of those questions will weigh heavily against the conviction being set aside. A consideration of the reported decisions shows the difficulty which appellants face in this area: R v Poulter (1978) 19 SASR 370; R v Flower [1966] 1 QB 146; R v Stone (1926) 26 SR (NSW) 394, and McGrath v R (1916) 18 ALR 124.
I also quote from the High Court of Australia's decision in Craig v R (1933) 49 CLR 429 at 439:
"A Court of Criminal Appeal has thrown upon it some responsibility of examining the probitive value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable man to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced."
It is not necessary to deal in detail with each of the questions which I have earlier set out for the simple reason that the evidence given on appeal by Regina Manepo Moria was plainly unreliable. First, her demeanour before this Court was most unimpressive. Secondly, her "fresh evidence" before this Court involved numerous non-responsive answers. She contradicted herself on a major point, claiming in this Court that the amount promised was K2,000 compared to a suggested K4,000 when she raised her allegations back in September 1988. Fourthly, she made the unbelievable claim that she had told the learned trial judge that she was not giving evidence of her own free will. Fifthly, there was an objective aspect arising from the circumstances whereby her accepted evidence was obtained which clearly suggests that the learned trial judge was correct in his treatment of evidence: the evidence of Detective Inspector James Kupi (unchallenged on this aspect) was that, having been taken to a number of locations, Regina Manepo Moria froze at one particular location and then told the version which the learned trial judge accepted as constituting the truth. 
To say that the allegations which Regina Manepo Moria now raises are serious and that the matter should be remitted for re-trial not only overlooks the need for this Court to consider the reliability of the current claims of Regina Manepo Moria but is, as a consideration of the cases shows, wrong in law. Serious allegations are commonly made in the courts of this country. For example, in National Court trials, accused persons not infrequently make serious allegations against police officers in relation to their conduct of records of interview. Such allegations are not determined on the basis of the seriousness of those allegations but on the basis of their reliability. As with the trial, so, on appeal, a serious but unreliable allegation is not sufficient to persuade a court.
In refusing to order a re-trial on the basis of the unreliability of Regina Manepo Moria's current allegations, I am not doing anything novel: there are numerous decisions where the unreliability of fresh evidence has been a basis upon which an application for a re-trial has been rejected: Craig v R (1933) 49 CLR 429; R v Kelly (1946) 46 SR (NSW) 344; R v McDermott (No 1) (1947) 47 SR (NSW) 379; R v Kadar (1955) 56 SR (NSW) 1; R v Wakefield [1957] VR 547; R v Ryan [1940] St R Qd 170; R v Townes (1942) 36 QJPR 129; Taylor v R (1918) 20 WALR 47; Steele and Phillips v R (1919) 22 WALR 22, and Hurley v R (1919) 22 WALR 25.
Furthermore, this Court should be mindful of the practical consequences of ordering a re-trial in cases such as this, namely in circumstances where the fresh evidence, although raising serious allegations, is not reliable. Such a course would leave open the tactic of convicted persons or their friends or relatives trying to "lean on" witnesses who had given evidence at trial. It would also allow crucial State witnesses to hold the police to ransom by giving evidence then demanding money which, if not paid, would incur retaliation via that witness giving fresh evidence on appeal in order to provoke a re-trial at which no evidence would be given without payment of the money demanded. 
I do not propose to judicially open such a "door" which would have the obvious consequence of severely undermining the administration of justice in this country. 
Davies and Cody v R (1937) 57 CLR 170 was a joint five-member decision of the High Court of Australia, which ordered a new trial on the basis of an inadequate instruction by the trial judge to the jury. As the appeal involved a claim by a State witness that he perjured himself during the course of the trial, it is relevant for present purposes. On that issue, the High Court indicated, in a passage quoted by Bray CJ in Poulter's case:
"A declaration by a witness that he has committed perjury cannot be possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If a contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule be allowed as a ground in itself for setting aside a verdict or a judgment." (ibid at p 183-4).
Mr Kariko, who appeared for the appellants, seemed to be suggesting to this Court that it was a necessary consequence that, if Regina Manepo Moria was considered an unreliable witness on appeal, she must, therefore, be found to have been an unreliable witness at trial, and the conviction should accordingly be set aside. There are two answers to such a proposition. First, the obvious explanation as to why a witness may appear reliable on one occasion and unreliable on another occasion is to be found in the fact that a witness will appear reliable when telling the truth and unreliable when not doing so. Secondly, the test which needs to be considered in relation to a fresh evidence application is not whether Reginal Manepo Moria was a reliable witness at trial but whether her evidence given on appeal to this Court was reliable.
I repeat my clear view that Reginal Manepo Moria was an unreliable witness before this Court on appeal, and I do not propose to shirk my duty to do justice in this case by ignoring her blatant unreliability before this Court and sending the matter back for re-trial on this ground. Rather, I would call the evidence on Regina Manepo Moria in this Court for what it was: concoction after conviction. I am satisfied that this witness, having given truthful evidence at trial, demanded money from the police and, when it was not forthcoming, tried to retract her evidence in a most unconvincing manner. Clearly, she has given evidence on oath before this Court which is completely contrary to her evidence given at trial, and the Public Prosecutor will need to give consideration to charging her with perjury.
It is not necessary to consider the rebuttal evidence of Inspector Kupi, since there was no reliable fresh evidence in need of rebuttal. Mr ToWaluta (who appeared for the State on the appeal) led some evidence-in-chief in addition to Inspector Kupi's four-page statement. Cross-examination by Mr Kariko did not bring to light anything which would weigh against the credibility of a person endeavouring to recall matters four years after the events. To say that Inspector Kupi never asserted that Regina Manepo Moria was now lying ignores the fact that the laws of evidence do not entitle him, as a witness, to express an opinion on the credibility of another witness. To say that he failed to address the major allegations of Regina Manepo Moria ignores the fact that he was a witness and, as such, only answered the questions he was asked. If it may be said that Inspector Kupi's evidence focused upon the post-conviction conduct of the appellants this merely reflects good judgment on Mr ToWaluta's part in that, unlike Mr Kariko, he was able to discern the unreliability of the recent claims of Regina Manepo Moria before this Court and tailor his case accordingly.
Counsel for the appellants sought to gain mileage from the fact that Officer de Silva, who was at the relevant time a police officer involved in this case, was not called. Mr Kariko sought to make much of his absence, as if the State had a duty to call him. The failure to call a witness during a trial may give rise to certain inferences, but any suggestion that the State was obliged to call Officer de Silva in rebuttal on appeal is plainly misconceived. Simply put, he never became relevant because Regina Manepo Moria's evidence on appeal was plainly unreliable.
However, Mr Kariko did not stop there. Ignoring the laws of evidence completely, he produced a 4-page, 16-paragraph document purporting to be in reply to the State's rebuttal evidence. That document, signed by Chief Superintendent Francis Mugugia, not only made allegations against Officer de Silva but even went so far as to venture comments such as, "I had long viewed Mr de Silva with suspicion ... ".
At the risk of stating the obvious, it is clear law that a witness cannot give evidence going to the credit of another witness. If that were allowed to happen, as the Public Solicitor called Superintendent Mugugia in an attempt to damage the credibility of Mr de Silva, so would the State then call witnesses to damage the credibility of Mr Mugugia and the process would never end.
The affidavit of Superintendent Mugugia proves nothing and only served to show that Mr Kariko became so caught up in his client's cause as to have his vision clouded by the dust of the conflict.
To rely upon the failure of Mr de Silva to give evidence is to reverse the onus of proof in this appeal. To use inadmissible comments by Superintendent Francis Mugugia against Officer de Silva to suggest that Regina Manepo Moria's evidence on appeal must be believed can only be described as a low water-mark in legal reasoning.
Following the law in relation to fresh evidence applications and the laws of evidence, there is no sensible alternative but to reject this aspect of the appeal.
The second ground of appeal which was argued was that the evidence of Regina Manepo Moria "was so discredited that the verdicts were unsafe and unsatisfactory". Primarily, this submission was based on the fact that the witness made three statements. It has been suggested in this appeal that the explanations for these statements were not addressed properly by the trial judge. A close consideration of the transcript shows that Regina Manepo Moria was cross-examined extensively but that she was not asked any questions in relation to the fact that she had made three statements. Her reason given in relation to the first statement (dated 6 July 1987) was challenged in but one question. In contrast to that scant treatment of such a significant issue by the appellant's lawyer at trial, the learned trial judge devoted a full two pages in his judgment as to why he accepted the evidence of Regina Manepo Moria arising from her third statement, being the one dated 25 September 1987, the version which she adhered to in the witness-box.
There are a number of answers to this ground of appeal. First, a consideration of the transcript shows that the evidence given by Regina Manepo Moria at trial cannot sensibly be said to have been so discredited by the cross-examination as to render the conviction unsafe and unsatisfactory. Secondly, the evidence given by Regina Manepo Moria before this Court, being unreliable, does not thereby render her evidence at trial unreliable for, as I have already indicated, Mr Kariko failed to exclude what is by far the most compelling explanation, namely that Regina Manepo Moria was reliable at trial when telling the truth and unreliable upon appeal when not telling the truth. Thirdly, a mistake which lawyers commonly make is to focus upon alleged inconsistencies on trivial matters and then say that the evidence is unsatisfactory. The answer to that proposition is simple: the function of a court is not to search for inconsistencies but to search for the truth. Indeed, it's often the case that only a fabricated story will with-stand memorised repetition without inconsistencies whereas a truthful recollection will contain minor discrepancies.
The first of the alleged discrepancies set out in paragraph 3.3 on page 3 of the appellants' lawyer's written submissions does not exist: both the statement and transcript suggested that the appellant, James Pari, introduced Regina Manepo Moria to the victim in English! A further answer to the alleged discrepancies which Mr Kariko now wishes to raise is that they were never raised at trial: there was no cross-examination of Regina Manepo Moria in relation to alleged discrepancies. Accordingly, this is a case of a lawyer, post-trial and pre-appeal, scouring the appeal books for some way to challenge the convictions.
This ground of appeal overlooks one of the most important considerations in an appeal against conviction whereby the evidence of a witness is challenged, namely that the learned trial judge had the immeasurable benefit of having heard and seen the evidence of the witness in question. The difference may be likened to a movie: the trial judge sees and hears the movie but the judges on appeal only get to afterwards read the script. Although persons who read the movie script may be able to comment on that script or the plot, they are in a plainly inferior position to a person who actually saw the movie. Recent decisions in this Court have, on occasions, been quite cavalier in that they have paid little if any attention to this enormous advantage of the trial judge. The pendulum has swung far enough: it is time for it to be returned towards the equilibrium position before the system of National Court trials becomes meaningless and the first ground in every notice of appeal to this Court is that the appellant was convicted in the court below.
An additional basis on which the learned trial judge's acceptance of the evidence of Regina Manepo Moria was challenged was in relation to her smoking marihuana on the day in question. The suggestion that Regina Manepo Moria was affected by marihuana was dealt with by the witness when she was asked, in relation to her identification evidence, "You could make a mistake?" to which she replied, "The thinking is there and your eyes is (sic) still there." Anyone who took time to consider the detail of her statement and evidence could not help but form the view that such details could not have been "force-fed" to her by the police, as was alleged for the first time on this appeal, nor could they be sensibly suggested to have originated from a person unduly affected by marihuana.
Thirdly, Mr Kariko challenged the identification evidence beyond that of Regina Manepo Moria in his written submissions as follows:
"The other identification evidence came from witnesses Hanemo and Gaiware. They are said to have made identification of the appellant James Pari at a (sic) I/D parade conducted at the Police Station."
I regret that it is necessary to indicate that such a proposition mis-states the evidence. First, there were not two but at least three people who identified the appellant, James Pari, during an identification parade. Even Mr Pari admitted to four such persons in answer to question 51 of his record of interview! Secondly, that proposition mis-states the evidence in that it seeks to suggest identification evidence comprised only that arising from the identification parade. As shall presently appear, the identification evidence went far beyond that.
Under this heading, Mr Kariko's next proposition was "that the line-up was an unfair one (from viewing the tape). Persons of different height, built (sic) and facial appearance were used". Having viewed the video-tape in question, I consider that proposition to be long on hope but short on substance.
Finally, under this heading, it was submitted that the learned trial judge "could not have been satisfied that the deceased was seen with the appellant Pari on the Sunday" in question. A consideration of all the evidence, summarised later herein, reveals that proposition to be untenable.
The final basis for the appeal was nothing short of bizarre: having just addressed the court on how the video-tape showed the identification parade to be unfair, Mr Kariko, only moments later, submitted that the video was wrongly admitted into evidence! His client, James Pari, when giving evidence, referred to the video-tape, thereby suggesting that he intended to rely upon it. A fundamental objection to this ground of appeal, as Mr Kariko sheepishly conceded at the outset of his oral submissions on this point, is that no objection was taken to the tender of the video-tape during the trial. If this video-tape was so alarmingly prejudicial as is now suggested, then why was it accorded a free passage into evidence at the trial?
Accordingly, there are manifest inconsistencies attending this aspect for the appeal. First, that on the one hand the appellants and their lawyers wanted to have the video in evidence to use against the State yet, on the other hand, they were saying that the trial judge erred in admitting the video-tape into evidence. Secondly, that a video-tape now asserted to be wholly prejudicial was allowed to become evidence in the trial without so much as a murmur from the appellants' lawyer at trial.
To those points a third should be added. In oral submissions, Mr Kariko claimed that the video-tape introduced a racist element into the trial since the programme in question, which dealt with this murder of an Australian woman by a PNG citizen, was entitled "White Prey". With respect, that submission overlooks the fact that it was the appellant, James Pari, who introduced a racist element to this trial at its outset, when he was asked to plead to the charge and replied, "I will not say yes or no. I do not want an expatriate judge to hear my case. This case involved a white woman, and I don't want a white judge to hear it".
The final aspect contained in the written submissions, was not the subject of oral submissions which might suggest that it was no longer pursued. In case the point is still pursued, I now consider it. Paragraph 5.2 of the written submissions suggested that the statements of Joseph Likky and Alan Cameron were "wrongly tendered and accepted by the court as they were highly prejudicial to the defence of the accused". Again, the two statements were admitted without objection by the appellant's lawyer at trial. Inspector Likky was not asked any questions on the aspect of the statement said to be highly prejudicial to the appellant. Mr Cameron's affidavit was not only admitted without objection, he was not even required for cross-examination! Perhaps therein lies the explanation for the absence of oral submissions in relation to this point during the appeal. No explanation has been provided to the court as to why evidence now suggested to be highly prejudicial was never objected to in a trial, and in those circumstances the submissions on this point must fail. In any event, even if the admission of these small passages, constituting a very minor part of a vast array of evidence, may be said to have been wrongly admitted, the nature and extent of the remaining evidence is such that no miscarriage of justice to the accused can possibly be said to have occurred.
It is not an uncommon tactic in a criminal appeal in this country for a lawyer to indicate particular aspects of the evidence against convicted appellants and then to venture the conclusion that the verdict was unsafe and unsatisfactory. The proper evidentiary approach in a criminal trial may be likened to a bundle of sticks which might be individually broken but not collectively. In like manner, it is a fallacy to raise a doubt in relation to individual aspects of the evidence because the State is not required to prove each evidentiary aspect of its case beyond reasonable doubt: the proper approach is to look at the whole of the evidence and to consider whether the charge has been proven beyond reasonable doubt.
When a submission is made that a verdict is unsafe and unsatisfactory, it is not sufficient to categorise the evidence and explain away various categories in isolation as if evidence exists in separate, water-tight compartments. An appellate court judge, confronted with a claim that a conviction is unsafe and unsatisfactory, does not have an option but a duty to consider the whole of the evidence, laborious though that may be in a case such as the present.
I, therefore, summarise all of the evidence which was led at trial on this case in order that the appellants, their lawyer, the victim's friends and relations, and the general public might be assured that I have done my duty. First, I consider the State case, witness by witness:
.         Gera Michael Maima made a statement but did not give evidence. He was the person who discovered the body.
.         Graham Harmon is a forensic scientist who conducted certain scientific examinations of various articles. 
.         B.J. Mallett prepared a laboratory report.
.         Records of interview with each accused together with their section 96 statements were tendered against each of them respectively. They were admitted without objection.
.         James Pari, in his record of interview, denied ever having driven a car, denied ever visiting the victim, did not mention the alibi defence which he later raised in evidence and, at the conclusion of his record of interview, refused to sign the document.
.         Tine Bomai Kaupa's record of interview contained a version of his movements of 5 July 1987. His reply to question 70 was telling: "I made a mistake, I have confessed".
.         James Hanemo. On Saturday 4 July 1987 at about 9am, he saw a man whom he later identified as James Pari knock on the victim's door. He also "went and sat with him" and spoke with him. There was only a useless, four-question cross-examination of this witness, who identified James Pari at the police identification parade and also during the trial. His statements set out details of a conversation he had with this man, which showed that a man, James Pari, was professing to be interested in buying the victim's car. 
.         Diane Gaiware. This witness also saw James Pari not once but twice with the victim on the day of her murder. She also identified him in the police identification parade as well as in court during the trial.
.         Melanie Gaiware's statement indicated that she also saw the victim and James Pari in the victim's car, with James Pari driving, at about 10 am on 5 July 1987 and again in the afternoon of the same day. The car was proceeding slowly, and she outlined the circumstances which, to her, seemed suspicious.
.         Annie Bernabe's statement became Exhibit N. She recalled seeing a national man go to the victim's door on Sunday 5 July 1987 and recalled the victim's response when opening the door, which would suggest that the caller was someone she knew. This witness also recalled seeing the national man and the victim walk towards the car-park, and shortly after she heard the victim's car exiting that car-park. She did not identify the appellant, James Pari. However, her evidence does confirm the evidence of other witnesses who did.
.         Peter Waide indicated that the victim piloted a helicopter on 5 July 1987 between about 2 pm and 4 pm, that he first tried to call the victim at about 10 am that morning, and that he was unable to get in touch with her until 1 pm. This witness was not cross-examined.
.         Regina Manope Moria's evidence may be summarised by saying that she gave highly detailed eye-witness evidence of being a passenger in the victim's vehicle with James Pari driving and the victim sitting in the front passenger seat. In the course of mentioning the events of the murder of the victim, this witness indicated that she urinated on herself from fear at that time, a piece of evidence which not only supports her truthfulness but which also confirms the fear which she held when making initial statements in relation to this matter. This witness also gave evidence as to the events subsequent to the murder, confirmed by the following witness, Janet Kare Gerel. Significantly, Regina Manepo Moria identified the shirt which James Pari was wearing on the day of the murder and indicated that she subsequently washed it for him, thereby removing blood stains. Cross-examination of Regina Manepo Moria was extensive but ineffective.
.         Janet Kare Gerel. As I have already indicated the evidence of this witness overlaps that of Regina Manepo Moria on the issue of the movements of the appellants after the murder on Sunday 5 July 1987. She also confirmed the evidence of Regina Manepo Moria as to James Pari, on the morning of the trial court hearing, placing his fingers to his lips in an effort to persuade her not to tell the truth.
It is convenient to here indicate that Janet Kare Gerel was put forward in the supplementary notice of appeal by the Public Solicitor as a witness who would give "new evidence" on appeal, which was never forthcoming. Nor were there any submissions directed to the status of her evidence at trial. Accordingly, her evidence strengthens the view that the evidence given by Regina Manepo Moria at trial was the truth. The only difference between Janet Kare Gerel and Regina Manepo Moria was that Janet Kare Gerel was not prepared to recant on her evidence in this appeal.
.         Father San Miyon's evidence indicated that he was present when the crucial 25 September 1987 statement was taken from Regina Manepo Moria. He spoke with Regina Manepo Moria in private before her statement was taken. He confirms beyond any doubt that this statement was neither concocted nor forced:
"I was satisfied in the manner the police questioned her and in the manner her statement was recorded. Regina did not appear to be acting under stress, duress or any other influence. She appeared totally relaxed."
Again, the limited cross-examination of this witness was ineffective.
.         Tom Malari gave evidence as to his observations of a speeding motor vehicle.
.         Rev. Bob Dipert's evidence revealed a particularly crucial point: he identified the T-shirt which Regina Manepo Moria said James Pari had given her to wash as being the very same T-shirt which he gave James Pari. His evidence was subjected to only limited cross-examination, and only three questions were asked on the issue of the T-shirt.
.         Dr Philip Golpak's affidavit and post-mortem report became Exhibit Y. It is sufficient to indicate that those documents outlined, in medical terms, the full horror of indignities to which this victim was subjected and the gruesome manner of her murder.
.         Chief Inspector Joseph Likky made a statement setting out his involvement in this murder investigation, including the identification parade, and gave evidence. Cross-examination was primarily directed to the identification parade.
.         Chief Inspector Emmanuel Helas's statement was admitted without objection. He was not cross-examined despite the fact that his evidence dealt with the conduct of the identification parade.
.         Detective Inspector James Kupi's statement covered in detail his involvement in this matter as a police officer. He was asked but nine questions in cross-examination, which were confined to a feeble attempt to challenge the correctness of the answer to Question 61 in the record of interview of the appellant, Tine Bomai Kaupa.
.         Officer de Silva's statement became Exhibit AC. He gave details of his involvement in this matter, notably in relation to the taking of the third statement of Regina Manepo Moria. It is strange that Mr Kariko, on appeal, tried to make so much of Officer de Silva's absence: his colleague, who appeared at the trial on behalf of the appellants, did not even seek to cross-examine Officer de Silva!
.         Alan Cameron's statement was apparently admitted without objection. It did not add anything to the State's case.
That then was the State's case, and I now turn to the case for each of the accused, separately.
James Pari gave evidence in the nature of an alibi defence which was, as the learned trial judge correctly observed, very unusual by PNG standards, in that James Pari suggested that he was alone, for most of the day in question. He also made allegations in respect to the identification parade. 
In cross-examination, he claimed that all the witnesses against him were lying. Such a proposition necessarily involves the allegation that Regina Manepo Moria was lying and, by inference, that Father Miyon was lying when he said that there was no police misconduct in relation to the taking of the third statement from Regina Manepo Moria. It also suggests that Jane Kare Gerel was lying together with James Henamo, Diane Gaiware, Melani Gaiware, Rev. Bob Dipert as well as four police officers (Likky, Hela, Kupi and de Silva). A close reading of the transcript makes it plain that those witnesses were not lying: rather, it was James Pari who was lying. His lies included saying, in his record of interview, "I have never driven a car", denying that he had ever visited the victim, denying knowing his co-accused at all, and denying that the T-shirt in question was his.
James Pari tried to do everything he could to avoid being convicted: he not only alleged all the State witnesses were lying, he made allegations of police misconduct; on the morning of the trial he signalled to Regina Manepo Moria and Janet Kare Gerel not to give evidence against him by putting his fingers to his lips; he grew a beard prior to trial in a vain attempt to avoid identification, and he tried to suggest that he had such a beard on the day of the murder. Finally, he gave a false alibi in a futile attempt to distance himself from the relevant events on the day of the murder.
Tine Bomai Kaupa's alibi was that he was working in a garden all day on 5 July 1987, an aspect not mentioned when giving his version of events on that day to the police and in answer to Question 61 in his record of interview. As to the subsequent events that day, he maintained in evidence the same version of events as he had given in his record of interview, except that he claimed that the driver was not James Pari but someone else. He tried to suggest that the police put the name James Pari in his record of interview and that he did not know the name of the driver. This claim cannot be accepted: the best explanation by far is to be found in his answer to Question 70 in his record of interview, having placed himself in the subject vehicle with James Pari on the evening in question, he said, "I have made a mistake, I have confessed". He claimed on oath to have been forced to sign his record of interview and alleged that police officers burnt him with cigarettes for that purpose. That allegation is laughable: Tine Bomai Kaupa never signed his record of interview! Cross-examination had this accused claiming that the driver of the subject vehicle was a workmate despite having claimed, only a few minutes earlier, in his evidence-in-chief, that he had never seen the driver before. To put it politely, Tine Bomai Kaupa was clearly not a truthful witness.
To say that Regina Manepo Moria was not a truthful witness and to then go on to say that because hers was the major evidence the convictions cannot stand is to make the mistake to which I have earlier referred, namely to consider separate sections of the evidence rather than the whole of the evidence. The fact is that the evidence additional to that of Regina Manepo Moria confirms her evidence. Take, for example, the T-shirt which became Exhibit R. There was evidence from Rev. Dipert that he gave that very T-shirt to the appellant James Pari. There is also evidence from Regina Manepo Moria that it was given to her by James Pari for her to wash in order to remove blood stains from it shortly after the murder. Additionally, there was the forensic statement of Graham Harmon which, in respect to this T-shirt, indicated:
"A number of dark black stains and pale yellow stains were present. No blood was detected. The (shirt) appeared to be clean and recently washed."
This is a chain of evidence. It not only shows the T-shirt as being that of James Pari, but also shows that it acquired blood stains consistent with his involvement in the victim's murder. 
Further, to focus upon the evidence of Regina Manepo Moria and to proffer the opinion that the third statement was improperly obtained by the police is to ignore the evidence of Father San Miyon. To "write off" the identification evidence, as Mr Kariko sought to do, by limiting it to two witnesses and focusing upon the identification parade, is to fail to properly consider both the number of witnesses who identified James Pari, the number of times each witness identified him, and the circumstances of those identifications. 
Both at trial and on appeal, the appellants' lawyer sought to make use of the contents of a video-tape. That video-tape was of the subject identification parade. The appellants alleged blatant defects in relation to the conduct of that identification parade. Not only were those allegations not borne out by the content of the video-tape, but it is difficult to imagine a group of news-hungry journalists overlooking a sensational story of police misconduct in relation to an identification parade which would have been clearly available to them had the allegations of the appellants been correct.
The evidence in the criminal trial may be likened to a jigsaw puzzle whereby pieces of various size are fitted together in such a way that, when combined, they provide a picture. In like manner the evidence in this trial fitted together and painted a picture. Even if it may be said that the evidence of Regina Manepo Moria was a large part of that picture, the remaining evidence shows that the evidence of Regina Manepo Moria was clearly a truthful part of that picture.
Having considered all of the evidence, it is abundantly clear that the allegation that these verdicts were unsafe and unsatisfactory must be rejected.
I turn now to the question of the post-conviction conduct of the appellants. It is simply not correct to suggest that Inspector James Kupi's evidence in rebuttal upon the appeal did not address the major allegations made by the witness, Regina Manepo Moria. Nor can it be said that the impression created by his evidence was that the State was calling him not to rebut the allegations made by Regina Manepo Moria upon appeal but to indicate the post-conviction conduct of the appellants. The fact is that Inspector Kupi's sixteen-paragraph statement contained only one paragraph dealing with the post-conviction conduct of the appellants. The remainder of Officer Kupi's statement did, in fact, deal with the allegations raised in this appeal by Regina Manepo Moria. The relevant portion of the paragraph dealing with the post-conviction conduct of the appellants disclosed that, after sentences of life imprisonment were imposed on each appellant, the appellant Kaupa wept in court and then pointed his finger at the appellant, Pari, and said, "You committed the crime and now I am punished for nothing. You drove the vehicle and killed the expat woman, and I am being punished for your crime". He then yelled out to Pari, "You criminal" repeatedly. Pari shouted back, "You are going to die", threw his glasses down and reached for a chair, presumably intending to use it to strike his co-accused. However, the police stopped him. The words used by the appellant Kaupa to the appellant Pari represented accusations by an accused against his co-accused. Such comments are not evidence, although they can become evidence if that co-accused elects to give evidence commonly referred to as accomplice evidence. Kaupa's tears, on their own, are equally explainable by guilt or an innocent man's sorrow. Pari's reaction, however, is conduct suggestive of guilt and can be taken into account on appeal.
For reasons which I have earlier indicated, there is sufficient evidence to justify the conviction of both appellants in this case even if this post-conviction conduct is disregarded. Bomai's tears and words and Pari's reply and conduct, even if treated as wholly inadmissible by lawyers and judges, does have the practical effect of demonstrating to the general public that, in confirming a conviction on these two appellants, I am not doing them any injustice.
It has been suggested that, in this case, the appellants had no way of knowing that the evidence given by the witness Regina Marepo Moria was false. Such a proposition is errant nonsense as can be simply demonstrated by considering the two available alternatives. If the evidence of Regina Manepo Moria was false, then the appellants would know it was false because they were not there at the time. Consider, on the other hand, the far more compelling alternative, namely the evidence of Regina Manepo Moria at trial was true: in those circumstances, the appellants, far from having no way of knowing that the evidence given by the witness Regina Manepo Moria was false, would know it was true!
Further, it is not correct to state that Inspector James Kupi gave no evidence about the threats and assault attributed to him in relation to the suggestion that he improperly induced the statement given by Regina Manepo Moria on 23 July 1987. The fact is that Inspector Kupi deals with those matters in the first two paragraphs appearing on page two of his statement, which was filed in this court on 11 January 1991 and which was tendered in the course of the appeal.
Next, it is not correct to state that the only credible explanation for the three separate statements by Regina Manepo Moria is that she was pressured, assaulted, and offered bribes by the police. Indeed, that explanation is plainly rebutted by the evidence of Fr Sam Miyon. A clear explanation, as given by the Manepo Moria, was fear. That is consistent with the evidence she gave to the effect that she urinated on herself when she witnessed the events whereby the victim was murdered, and with the chronology of events. Accordingly, far from police misconduct being the only credible explanation, police misconduct is not an explanation. Fear is plainly the only credible explanation.
At the conclusion of his oral submissions, Mr Kariko loudly announced, "These convictions cannot stand." In contrast, Mr ToWaluta politely submitted that the convictions should be confirmed, and that submission is clearly to be preferred.
Whether due to an oversight on Mr Kariko's part or his mistaken confidence that the convictions would be set aside, no submissions were made on behalf of the appellants as to sentence. Having reviewed all of the documents in relation to this matter, it is sufficient to indicate that these two appellants, each sentenced to a term of life imprisonment, were punished in a manner which the heinous nature of this crime fully merited.
The fact is that the victim's life was brutally terminated 11 days prior to "going finish".
I wish to conclude by making some comments in relation to the conduct of this appeal. The submissions in this appeal concluded on 1 August 1991, more than three years after the conclusion of the trial and more than four years after the murder. That is unacceptable, whatever the reason or reasons. However, it is not merely that time delay which is a cause for concern but the attitude and approach of lawyers to the highest court in this nation, the Supreme Court. 
On 23 April 1991, when the hearing of this appeal commenced, the State did not have available any witnesses to be called in rebuttal and the case had to be adjourned. Fortunately, that was the only default on the part of the prosecutor. 
Not so the Public Solicitor, Mr Kariko. On 24 June 1991, the second hearing day for the appeal, soon after 3 pm when the rebuttal evidence concluded, Mr Kariko had the temerity to suggest that he was not ready to present his oral submissions. There are a few countries in the world where a lawyer would dare make such a claim to the highest court in the jurisdiction. To add insult to injury, the following morning, at the outset of the third hearing day, Mr Kariko announced to the court that "something happened on the way to work this morning". He went on to elaborate that he met a senior police officer involved in this murder and suggested that such a person might be able to shed some light on the appeal. He went on to indicate his own lack of diligence by saying, in relation to the evidence of this possible witness:
"It had come to my attention before and I had made attempts to get the witness in but he was in Bialla at the time and, by pure coincidence, I met him on the road this morning."
But for Mr ToWaluta's politeness in conceding an adjournment "in the interests of justice", no adjournment would have been allowed. When the matter resumed on 1 August 1991, the fourth hearing day, it transpired that the adjournment had merely served to provide an opportunity for Mr Kariko to obtain a largely inadmissible affidavit from Chief Superintendent Francis Mugugia venting his spleen against Officer de Silva.
The percentage of Supreme Court criminal appeals which do not proceed on their specified hearing dates is unacceptably high. Reasons why such matters do not proceed include a failure to bring the appellant/prisoner to court, an absence of interpreters and, most commonly, that the lawyers are not ready. Sometimes the lawyers are not ready because the file has been passed from one lawyer to another at the last minute. Other times, a message arrives to the effect that the lawyer in question was required in the District Court!
I do not raise this topic out of some pompous concern for the image of the Supreme Court. I do so because every time a Supreme Court matter does not proceed as planned, there are a number of important consequences. First, if a judge has flown from a provincial area to sit on the case, a substantial amount of money is wasted - airfares, accommodation and travelling allowance. More importantly, every time a Supreme Court matter does not proceed as planned, three "judge days" are lost thereby, not only delaying finalisation of that Supreme Court matter but also contributing to the backlog of National Court matters, notably accused persons in custody on remand waiting for their case to be heard.
The present appeal should have taken only two hearing days. It took four hearing days. It began on the 23 April 1991 and should have finished the following day. Instead, after two adjournments, it finished more than three months later.
As I have already indicated, it is now more than four years since the murder in question and more than three years since the trial, the subject of this appeal. During that time the appellants have not known whether their sentences would be confirmed, the victim's friends and relatives have not known whether the legal system of Papua New Guinea would do justice in relation to this murder, and the general public, notably in Lae, have been left wondering whether these two men will be released back into the community. The delay involved in the present case was unacceptable, and it created a bad impression of the system of justice in this country.
More than that, given the unchallenged evidence of Fr Miyon, the obvious unreliability of Regina Marepo Moria's "new evidence", the unavailability of Janet Kare Gerel's "new evidence", and the post-conviction conduct of the appellants, it is difficult to see why this appeal was supported by the Public Solicitor's Office. If the decision to support this appeal is typical of the quality of the decision-making in that office, then the necessary consequence is a considerable wastage of scarce resources in the Public Solicitor's Office, often suggested to be understaffed and underfunded.
BROWN J: In this appeal against their conviction for wilful murder in the National Court at Lae on 22 July 1988, the two appellants seek the leave of this Court to adduce fresh evidence. Counsel for the appellants says that the fresh evidence intended to be placed before this Court is of a main State witness who gave evidence at the trial. A second witness, who it was alleged would also testify, was not available to be called, and this Court refused leave to deal further with that part of the appeal involving her evidence. In the event, one witness at the trial, Regina Moria, denied the truth of her testimony. She was a principal State witness, who was called to give eye-witness evidence about the killing of the deceased, Heather Mitchell.
Counsel for the appellants refers the Court to its powers to allow fresh evidence, as provided for by s 6 of the Supreme Court Act. Section 6(1) states:
"An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the Court the decision of which is appealed against, subject to the right of the Supreme Court:
(a)      to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it ..."
The evidence now sought to be adduced relates to that material in an affidavit by Regina sworn on 2 November 1990, and evidence which she gave orally before us. The material part of her affidavit said:
"1.      That I was a witness at the trial of James Pari and Tine Bomai Kaupa who were charged with the Wilful Murder of Heather Mitchell (deceased) in Lae on 5 July, 1987.
2.       That in the above-mentioned trial I gave an eye-witness account of the killing which led to the conviction and imprisonment of the two men on 22nd July, 1986.
3.       That I admit that my evidence in Court were not based on my own knowledge of the killing of the deceased.
4.       That the statements I gave to Police on 23 July, 1987 and 25 September 1987 were false.
5.       That my true statement was given to Mr Ellenas Batari of Public Solicitor's Office on 6 September, 1988. A copy of the statement is annexed hereto and marked with the letter 'A'.
6.       That subsequent to my statement of 6 September, 1988 (Annexure 'A'), I gave other statements to the Office of the Public Solicitor but I still affirm the original statement as per annexure 'A'.
7.       That I also affirm the statement I made to Niugini Nius on 21 September, 1988, after the said trial to be true. A copy of the news article is annexed hereto and marked with the letter 'B'.
8.       That I am prepared to return to Court and say that I told lies previously under Police direction."
Her statement prepared for her by the Public Solicitor on 6 September 1988 was to the effect that her previous statement given to the police and the evidence at the trial were false. She said two policemen, James Kupi and another named Joe, pressed her to "tell something" she did not see happen. They kept her at the police station for a long time and hit her head. To avoid an ordeal, she told a false story about a killing at Bumbu River. Later, she admitted that was a lie. After that she told another story. Following a visit to the actual scene of the killing, she said, she was told by the policeman, James Kupi, what to say about the movement of suspects, what each did, where each stood, and the order of attack on "the white lady". She stated she was told the names of those involved. Later, she met an "Indian police officer, Carlyle Silva (sic) and a priest and James himself". She said that at that meeting she tried to deny knowledge of the killing but was threatened with a ruler. At that meeting, she said the Indian police officer offered to safeguard her until the trial, and that after the case was over, she would be paid. She said that the policeman did not say whether this would be a cash payment. Further, she said she was disappointed that the police lied about paying her.
In fact, she was kept in a safe house and given air tickets to Chimbu from Lae, although she apparently used them to travel to Port Moresby, where she made a statement to Niugini Nius alleging that the police stated she and another woman would be paid money as compensation. She quoted a figure of K4,000.00.
Mr Kariko, for the appellants, relied upon two main grounds of appeal. They were:
1.       new evidence will show witnesses Regina Manepo Moria and Janet Kare Gerel were coerced, influenced, and promised favours to give evidence for the State against the appellants;
2.       new evidence will show the evidence against the appellants was concocted by the police investigators to mislead the Court as to the roles played by the appellants.
Three statements given by Regina to the police previous to the trial were considered by the trial court. They unfold an increasing willingness to open upon her knowledge of the killing, and are consistent with an increasing sense of security afforded by the police and a reducing apprehension as to her own vulnerability. Those various statements were tendered in evidence. This woman had been called and gave oral evidence at the trial. She was cross-examined. As a result, the trial judge in his summing up dealt with her evidence at some length. The trial lasted six days. This woman's evidence was but a part of the State case, which incriminated these accused directly and circumstantially. As well, the forensic evidence was damning. It is wrong to say, as she does in her affidavit, that her evidence alone lead to the conviction of these two appellants.
Regina was questioned at the trial about possible fabrication of evidence. She was asked:
"Q.      The policeman who have looked after you have told you to tell the Court what you have told the Court?
A.       He did not tell me, they assaulted me. I must give a good story to the Court.
Q.       They have assaulted you to tell the truth?
A.       No, they did not fight me or assaulted me, they said you must say what you have said.
Q.       Did they hit you?
A.       No.
Q.       Were you frightened of the policemen?
A.       No."
The possibility of her evidence being induced by force or fear of the police was not further explored. What the Public Solicitor now says is that it was induced by a promise to pay her money if she gave evidence against these two appellants. The Public Solicitor says this is fresh evidence. It was evidence not reasonably ascertainable at the trial because it was only after the event that the witness decided to reveal the fact of the police inducement.
The woman's statement (which she refers to in her affidavit as having been given to Mr Ellenas Batari of the Public Solicitor's Office) raises a number of reasons for her departure from the evidence which she gave in Court. She says her earlier statement of 6 July 1987 (which was tendered at the trial) was affected by her state of mind (affected as it was by "spak brus"). I have already touched on those reasons appearing in her affidavit.
Her reasons in her press statement had been the subject of various lines of questioning in Court by both counsel before the trial judge.
Quite frankly, her statement now is little else than a selective collection of suggestions made at trial by defence counsel to discredit her evidence then, suggestions which she had refuted.
I do not propose to dissect her affidavit, for I am satisfied no good reason exists to do so. It is the nature of her "fresh evidence" which must be looked at, the circumstances surrounding and giving rise to this affidavit, and her demeanour in this Court which I consider of primary importance on the question of whether or not to grant leave to allow such "fresh evidence".
The meaning of "fresh evidence" received judicial consideration in Peng v The State [1982] PNGLR 331. A long line of English cases were considered. Before going further into the principles, I should say there are two aspects to the evidence of this woman that require consideration. The first is the assertion now that her evidence in the trial was all lies. She says she was coached by the police. The second aspect is the reasons which she gave in her later affidavit and in this Court for those lies.
It is, then, a misnomer to treat her later evidence, comprised in that affidavit and given in this Court, as "fresh evidence". It is not fresh material, available at the trial, relevant to the issue of guilt or innocence. It is, in effect, no evidence, a total recantation. Consequently, further considerations should apply to those existing principles affecting the reception of "new evidence".
Her evidence relates to matters which occurred since these appellants' convictions. They are the approach by her relatives in Lae to the police to be paid for the fact that she gave evidence at the trial; her subsequent statement to Niugini Nius; and her consequent recantation before this Court.
It must be remembered that it was suggested to her in the trial that her evidence, in effect, was a fabrication. She denied it. The trial judge, when dealing with her credibility, said:
"The main question is can Regina be believed? She was a good witness, her standing and the way she presented her evidence in the witness-box was very clear and very sure. She provides the explanation that follows on from the other witnesses who saw the victim that day and her evidence also fits in with the medical evidence following the post-mortem on the body. There are fine details of her story and fine aspects of the way she presented her story which make it a very believable story. For example her description of what she did see and then did not see during the brutal attack and the rape fits in very well with the fact that she was sitting in a car some feet away from where the killing actually took place and after inspecting the scene her description accurately tallies with the scene and what she would and would not have seen. Also she was clearly embarrassed when she admitted in evidence that at the time she was so frightened by what she was witnessing that she urinated over herself. It is hard to make up fine details if you are inventing a story and it's hard to make up attitudes as you give such a story. The question is why would she risk her life to invent such a story. She has given a story which incriminates someone whom she has known as a sort of a brother who has visited her house regularly. She has incriminated two people from her area of Papua New Guinea within her traditional area. I cannot conceive that any police influence or any forceful persuasion if such is suggested could persuade a person like Regina to tell lies on someone from her own area of the country in a situation which does not really involve an enemy or her people or anything like that. And by telling lies she thereby would put her life at risk. She has everything to lose by telling that story. So it's impossible to see that in the cultural situation of the witness and the accused that she would lie against people like the accused especially against someone who to outward appearances is a wantok or as they called themselves a brother. It is obvious that she was so horrified by what happened that she has come to tell the truth. She has given several stories to the police but I can quite believe that she was so terrified to tell the truth at first seeing what she saw in the situation she was in and with threats having been made on her. Anyone would be terrified and reluctant to say too much. And as I have already said there were details in her story and aspects of the way she told her story that it could not have been fabricated." 
I am satisfied, on reading the transcript of evidence, that the judge was entitled to find her recollection of detail supportive of his finding that her evidence was both cogent and believable.
In R v Thomas (1959) 43 Cr App R 210, the English Court of Criminal Appeal dealt with two main grounds of appeal by a man convicted of child-stealing, abduction, and indecent assault. The grounds were that if leave were granted to call additional evidence, the Court would hear that, subsequent to the trial, the principal Crown witness, a girl, had admitted to persons that parts of her evidence at the trial were false and, secondly, that material was before the jury which had been wrongly directed by the trial judge as proper material for corroboration of the Crown case.
The Court of Criminal Appeal upheld the appeal on the second ground, but was careful to deal with the first ground in this fashion. The Court considered it proper, since the evidence of these subsequent witnesses related to matters which occurred after trial and could not strictly be "fresh evidence" for the purposes of s 9 of the Criminal Appeal Act (dealing with the Court's power on appeal in the light of R v Robinson [1917] 2 KB 108), that the first ground was one for a petition to the Home Secretary. But it decided to hear the evidence de bene esse and to postpone any ruling as to the court's power or discretion to receive it. Having heard the evidence, it was satisfied that it was not of sufficient weight or reliability and that it would not have affected a properly directed jury's findings.
I consider that this woman's statement and her evidence now are not strictly fresh evidence for the purpose of s 6 of the Supreme Court Act, but that the manner in which the English Court of Appeal has dealt with the question of reception of evidence of this nature affords this Court practical guidance.
In this appeal, the fact that a principal witness now recants, distinguishes it from Thomas's case. Again, Peng's case may be distinguished from the present, for that earlier case involved the fact of a statement by the accused to a policeman before trial, not having been alluded to at the trial, as being material of such a nature as to fall within the judicial definition of "fresh evidence".
Tabe v The State [1983] PNGLR 10 was a case where this Court had to consider an appeal by an aggrieved prisoner who was convicted of stealing property of the PNG Banking Corporation and/or the Mendi Local Government Council. The evidence at the conclusion of the trial was in such a state that the court, on appeal, was satisfied that the conviction was unsafe and unsatisfactory. The conviction was set aside and a new trial ordered. Justice McDermott (with whom Justice Gajewicz agreed) was at pains not to categorise the miscarriage as an instance where the fresh evidence rules applied, but rather one where, through "irregularity in the conduct of the trial" (to use the phraseology of Justice Kaputin), a new trial should be ordered. Tabe's case was distinguished clearly on its peculiar facts in Kuri v The State (No 2) (SC 414 of 23 August 1991), where, again, fresh evidence principles were argued.
Again, in R v Hullett (1922) 17 Cr App R 8, the appellant had been convicted of inflicting grievous bodily harm on one Mrs Joyce. Sentence had been postponed. In the meantime, a witness for the prosecution, Alice Jones, a girl of about 17, had gone to the police to say that her statement at the trial that she heard the defendant say at the time of the assault, "I have bitten off her finger", was due to a mistake.
On appeal before the Court of Criminal Appeal, she said that before the trial the victim had told her (and written down) that the defendant at the time of the altercation had said the words quoted above. Believing them to be true, she had repeated them to the trial Court as her own eye-witness account. She had not meant to tell a lie, and did not realise she was doing so. She had not, in fact, heard the defendant use the words.
Lord Chief Justice Hewart said of Alice Jones's recantation, that she was an unsatisfactory witness. As it could not be said that, without her testimony, the jury must have convicted (though no doubt they might), the conviction must be quashed.
Alice Jones's explanation is one of honest misapprehension as to the nature of eye-witness evidence. Such is not the case here. Regina Moria was under no misapprehension. Her evidence was direct eye-witness evidence surrounding the killing, the circumstances leading up to and following the killing, and her knowledge of these two appellants. She now says such evidence was lies. The question of whether that was so anticipated to some extent, by the police. They do not appear to have anticipated the manner in which the question would arise, after the trial. The police were at pains to ensure that the woman freely and voluntarily gave her statement of 25 September. For instance, they approached a Catholic priest, Father San Miyon, who said in part:
"On 25th September 1987, I was requested by Inspector James Kupi of CID Lae to be present when a statement of a witness in a murder/rape case was to be recorded. He told me that they tried to contact the police chaplain but failed. I agreed to assist the police in whatever way they required my services.
On the same day at about 10.15 am, I was taken to Lae Police Station in Police transport and I met a Superintendent of Police by the name of Carlyle de Silva.
He explained to me the services that were required from me. He told me that he had a witness in a rape and murder case of one Heather Mitchell, a pilot with Pacific Helicopters who was found murdered at Mt Lunaman on the 6th July 1987. He further explained that this witness's name he gave as Regina Moria, had made two earlier statements and that she wanted to make a third statement which the Police were going to record.
However, he explained that since the woman had made two earlier statements and since she was known to be a person of ill-repute, it was necessary that all safe-guards should be taken against possible allegations at a later stage to the effect that the statement was taken by Police through illegal means or by persuasion or promise.
I was requested to talk to the witness in private, before the statement commenced so that I could satisfy myself that the woman was making a voluntary and truthful statement. I was also asked to observe her condition, that is, if she was relaxed and normal or whether she appeared to be under stress or pressure.
I spoke to her for about 15 minutes in a room adjacent to the office of the OIC Prosecution. I was satisfied that the witness wanted to speak freely and truthfully and indeed she appeared very relaxed and normal.
Thereafter, we were taken to another location where in my presence and that of Supt Carlyle de Silva the statement of Regina Moria was recorded. The proceedings were typed by a lady whose name I do not know and the questions were directed by Inspector Kupi of the CID. I was only an observer to ensure that nothing unfair to the witness took place.
The statement was concluded by 4.00 pm. The witness was fed at lunch-time. I was satisfied in the manner the Police questioned her and in the manner the statement was recorded. Regina did not appear to be acting under stress, duress or any other influence. She appeared totally relaxed.
The statement was recorded in English but at its conclusion it was read out to the witness in Pidgin by Inspector Kupi. She agreed to the contents and made no corrections, deletions or additions to the document. She signed the statement thereafter in my presence."
This evidence was before the trial judge when he considered the weight of this woman's evidence.
This question was considered in Peng v The State [1982] PNGLR 331, which was approved and applied more recently in Kuri v The State (No 2). 
What principles should be adopted then, in the circumstances of this case?
Before dealing with this question, I wish to deal with the oral evidence given by Regina Manepo Moria on this appeal before this Court on 23 April this year. She adopted her statement, which formed part of her affidavit read on the appeal. When asked whether the story she had given the trial court was true, she answered, "It's not true". Counsel for the appellant then took her through her reasons for now saying it was not true. She initially alleged that the police took and beat her and she consequently made up the stories in her statements (apart from the first) given to the police before the trial. She said her eye-witness account at the trial was also made up. She said that she did not know the lady who died. Then she said the CIB and the police taught her to talk and instructed her what to say. She was asked in this Court, "What did they (policemen) actually tell you to say?" She replied, "They told me, if you don't tell the story, the two men will come up and kill me". Later she said, referring to the police, "They hit me, I felt pain. They left me alone. I made up a story".
No cogent evidence was elicited from her as to where or how she was supposedly coached in her story. It is clear, even from the fore-going, that she is suggesting at least two alternatives. She made up the stories because she was beaten, or she was taught the stories.
The tenor of her evidence left me in no doubt that she now wishes to recant, but I am unable to determine why. The reasons suggested were various. Her father, it was suggested, went to the State Prosecutor's office in Lae after the trial and demanded compensation. She denied this, saying that she asked Inspector Kupi for K2,000, the amount he offered. It was put to her that because she can't get K4,000 she wanted to change her story. She replied, "The death, truly I don't know. The police forced me to talk. If we (the police) put these two persons in prison we will give you K2,000". She said she told the priest the same story. The priest makes no mention of this inducement. He in fact denies any inducement.
The police gave evidence of secreting her away from Lae for her own protection. She was housed and fed. She was subsequently given airfares for her return to Chimbu but chose to go to Port Moresby and make a statement to Niugini Nius. I was not at all impressed by her evidence before this Court explaining why she now wishes to recant. It is full of inconsistencies and explanations which are implausible when considered with the evidence that she had previously given at the trial, evidence which, on cross-examination, continued to reveal a wealth of detail which a very astute person well-versed in court procedure may withhold in evidence-in-chief to foster a sense of dependability and truthfulness. But this lady is neither astute nor versed in court procedure. I place little weight on her wish now to recant, for whatever reasons. Whilst she may be unreliable now, so far as the factual situation at the scene of the killing is concerned, the trial judge was in a better position to assess the value of her evidence. There was much evidence which, in effect, corroborated her story.
The judgment of the English Court of Criminal Appeal in R v Flower [1966] 1 QB 146 cogently deals with the nature of fresh evidence by a witness subsequent to that at the trial and the principles to be applied, taking account of the interests of justice. The principles have received judicial approval in this Court, have been applied in Peng's case and subsequently, as I have mentioned.
In Flower's case, the material witness, a Mrs Brown, gave evidence different from that given at trial. I quote from the judgment of the court, given by Widgery J at p 150:
"It is contended before us by Mr McKinnon that different considerations arise where the fresh evidence consists of a witness going back on the account which he gave at the trial as opposed to a fresh witness who was not called at the trial at all. Mr McKinnon contends that, even if we were utterly to disbelieve the evidence which Mrs Brown gave in this Court, we ought still to order a new trial because it would have been established that she was an unreliable witness and the jury, so he says, should be given an opportunity to reconsider her evidence in this light. It is to be observed that if that is the correct approach the function of this Court in assessing the credibility of fresh evidence largely disappears, and, if any key witness has second thoughts after the trial, a quashing of the conviction would be almost bound to follow, because if this Court believes the witness it would itself be bound to set the conviction aside, whereas if it disbelieves the witness it would have to send him back discredited, with a view to his being disbelieved by the jury at a new trial. If the witness's new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial."
The principal was summed up thus:
"It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness's account in this court differs from that given in the court below. So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony."
In the event, the court disregarded Mrs Brown's later evidence, no acceptable explanation of the reasons for her having changed her story having been advanced. Such was not the case, I venture to say, in Hullett's case, where Alice Jones innocently misled the court by her apparent "first-person evidence", when she misapprehended the nature of an eye-witness account.
In Palmer v R 106 DLR 3d 212, the Supreme Court of Canada, on appeal, had cause to consider the admissibility of an affidavit by a chief Crown witness in which he stated that his testimony at trial and at the preliminary hearing implicating the appellant was fabricated under pressure from the police and Crown counsel. Further, quoting from the headnote:
"One of the allegations made was that the witness was to receive a payment of $60,000 for his testimony. In affidavits filed by the Crown, the prosecutor and the police, the allegations of impropriety were denied. These affidavits showed that the witness had been supported and protected by the police after he agreed to testify following an attempt on his life. The police and the Crown had also agreed to provide him with protection after the trial and to relocate him. However, prior to trial the witness decided he wanted a cash payment rather than relocation expenses. He wanted $50,000 and would then relocate himself and incur his own expenses. The police, in discussions among themselves, considered that $60,000 would be reasonable but after the trial the Crown was only prepared to pay $25,000. This amount was paid to the witness and his efforts to obtain the other $35,000 were unsuccessful. The witness had a criminal record and was an admitted drug trafficker. 
The British Columbia Court of Appeal refused to admit the fresh evidence and dismissed the appeal. On further appeal by the accused to the Supreme Court of Canada, held, the appeal should be dismissed."
The discretion given the Canadian Court of Appeal is wider than that afforded this Court by virtue of s 6(1) of the Supreme Court Act. The Canadian section does not relate the nature of the fresh evidence to that evidence which may have been available to the Court below but rather places the emphasis on the Court to elicit principles when dealing with the meaning, in the context of an appeal, of the phrase "in the interest of justice".
Section 610 (1)(d) of the Canadian Criminal Code:
"For the purposes of an appeal under this Part the Court of Appeal may, where it considers it in the interest of justice ... receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness."
Those principles were summarised in the headnote. They are:
1.       the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, although this principle is not applied with the same strictness in a criminal trial as in a civil trial;
2.       the evidence must be relevant in that it bears upon a decisive or potentially decisive issue;
3.       the evidence must be credible; and
4.       it must be such that if believed it could, when taken with the other evidence adduced at trial, reasonably be expected to have affected the result.
Those principles reflect the English principles on the reception of fresh evidence, principles which have found favour in this Court. But it is the Canadian court's judgment by McIntyre J dealing with the Crown's policy relating to payment for the protection of witnesses which raises interesting analogies with the appeal, now before this Court. He said at p 227:
"I cannot leave this part of the case without making some general remarks upon the situation it reveals. There can be no doubt that from time to time the interests of justice will require that Crown witnesses in criminal cases be protected. Their lives and the lives of their families and the safety of their property may be endangered. In such cases the use of public funds to provide the necessary protection will not be improper. When the need arises, the form of protection and the amount and method of the disbursement of moneys will vary widely and it is impossible to predict the precise form the required protection will take.
The dangers inherent in this situation are obvious. On the one hand, interference with witnesses cannot be tolerated because the integrity of the entire judicial process depends upon the ability of parties to causes in the Courts to call witnesses who can give their evidence free from fears and external pressures, secure in the knowledge that neither they nor the members of their families will suffer in retaliation. On the other hand, the Courts must be astute to see that no steps are taken, in affording protection to witnesses, which would influence evidence against the accused or in any way prejudice the trial to lead to a miscarriage of justice. However, in cases where the Courts are, after careful examination, satisfied that only reasonable and necessary protection has been provided and that no prejudice or miscarriage of justice has resulted in consequence, they should not draw unfavorable inferences against the Crown, by reason only of this expenditure of public funds.
It must be recognized that when cases of this nature arise, charges of bribery of witnesses will, from time to time, be made. It is for this reason that the Courts must be on guard to detect and to deal severely with any attempt to influence or corrupt witnesses. The Courts must discharge this duty with the greatest care to ensure that while no impropriety upon the part of the Crown will be permitted, the provision of reasonable and necessary protection for witnesses is not a prohibited practice. In the United States, there are statutory provisions expressly contemplating such expenditure under the authority of the Attorney-General."
It was quite clear, on the undisputed facts of this case on appeal, that Regina was afforded protection, in that she lived away from Lae for a period of up to trial and she was given airfares to her "place". The fact that she was not paid money seems to have precipitated her recantation. I am not satisfied, on her assertion that they offered her money, that improper motives should be imputed to the police. Compensation looms large in all avenues of life in Papua New Guinea at the moment, so her request to be paid is not out of the ordinary. I must consider improper motives on the police part. There is no corroborative evidence of the supposed offer of money, which Mr Kariko seeks to categorise as a bribe to fabricate evidence. Mr Kariko cannot point to any direct evidence, rather relying on the woman's assertion. As I say, I found the woman, in this Court, to be unconvincing with her expressed reasons for recanting from her eye-witness account at the trial court. On the undisputed facts, I am of the view the police protection and airfare was entirely within the realm of proper expenditure, which does not taint the worth of the woman's evidence for those reasons alone. I do not believe her, however, where she says she was offered quite a large sum of money to give evidence. Consequently, I need not categorise such offer proper or improper for police purposes. I disbelieve her for the same reasons and on the same grounds that I have previously explained, grounds relating to her general credit now.
It cannot serve the interests of justice to permit any witness, by recanting, to re-open trials at will. The administration of justice would be detrimentally affected. The trial judge was able to rely on this woman's evidence at the trial, and for the reasons I have given, his findings are justifiable on all the evidence which he accepted.
Because I now find her to be unreliable, in this appeal, I need not necessarily disbelieve her evidence on trial. Her reasons for having recanted must be looked at. Her reasons smack of bad faith. She was examined at the trial about continuing allegations of police beatings and threats. They were, in effect, admitted by her to be false. It does not take much thought to realise that a witness, ill-treated, is hardly likely to be favorable for the State's purposes. But the State, at its own cost, has provided a "safe house" for this woman. To attempt to blackmail police into payments to witnesses to avoid the possibility of appeals would be contrary to the proper administration of justice, just as any police attempt to corrupt witnesses by bribery would be.
I am not satisfied on the basis of her story here, that there was any attempt before trial to bribe her to give fabricated evidence. No circumstances have been recounted. Rather, she made a bald assertion of a promise. Consequently, I consider her fresh evidence, if it may be so called, should be disallowed. This Court should be very wary of admitting evidence on appeal in circumstances involving some supposed prerogative resting with this Court (where such evidence is not strictly "fresh evidence) unless the bona fides of the witness are established, and such later evidence is capable of being supported by an innocent explanation. For here, the explanation is not innocent. It springs from her expressed wish to penalise the police for failing to pay her "compensation". The failure to pay caused her to recant. Having heard her, I do not accept her bona fides. Conversely, I can see no evidence of any bribes. I do not propose to deal with other evidence which Mr Kariko sought to have the Court hear, evidence of an Inspector Mugugia. It was inadmissible in form and content, being opinion evidence. Just as evidence which goes to the credibility only of a prior witness may be called oath-helping and should be excluded, so, too, should this statement of Inspector Mugugia, who, in effect, seeks to discredit a police witness in the trial proceedings by character assassination.
I am satisfied, having heard Regina's evidence, that leave should not be granted to treat it as fresh evidence, nor should this Court, in the exercise of some prerogative, allow it to be so treated. It does not satisfy that later test that I propound, for it is not given bona fide, nor is it supported by any innocent explanation for her change.
The remaining grounds of the appeal were without merit. Although I have viewed a video-recording of an Australian production popularly known as "60 Minutes", no-where in the judge's summing-up does it appear that he has been prejudicially influenced by viewing such video. No real arguments were developed by Mr Kariko on the remaining grounds, and I do not propose to consider them further.
I would dismiss the appeal. The sentence given both accused is within the bounds of reason, having regard to the manner and ferocity of this killing. I would confirm such sentences of the trial judge.
Lawyer for the appellants: Public Solicitor.
Lawyer for the State: Public Prosecutor.