PNG Law Reports 1994
[1994] PNGLR 44
SC463
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
MAKO RANJIGI
V
THE STATE
Mount Hagen
Kapi DCJ Woods Los JJ
27 July 1994
29 July 1994
EVIDENCE - Intention to kill - Identification - Alibi.
CRIMINAL LAW - Sentence - Wilful murder - Tribal fight/pay back killing - Does not reduce seriousness of offence - No reduction.
Facts
Mako Ranjigi was in a group of men who attacked and killed a villager in a payback incident. He appealed against conviction on the following grounds:
1.       The evidence on the intention to kill was insufficient or inadequate.
2.       The evidence on identification was insufficient or inadequate.
3.       The trial Judge erred in not giving adequate weight to the evidence adduced by the defence.
He also appealed against severity of sentence.
Held
1.       With respect to the three grounds of appeal against the conviction:
(a)      Intention. On the evidence of injuries in the medical reports and the chase and attack, there was no error in the finding by the trial Judge.
(b)      Identification. On the evidence of witnesses, there was no error by the trial Judge as to identification. Although there were discrepancies about where the actual blows were inflicted, these were not such that the credibility of the State witnesses was undermined. Each witness may give a different perspective which, in the end, can still be the same.
(c)      Inadequate weight to defence evidence. The alibi evidence was discredited by the State, and the appellant's own evidence was contradictory. Therefore, there was no error of finding by the trial Judge.
2.       With respect to the appeal against severity of sentence, affirming Public Prosecutor v Keru [1985] PNGLR 78, tribal fight/pay back killing does not reduce the seriousness of the offence. The trial Judge considered circumstances favourable to the defendant and imposed a sentence of 25 years rather than life imprisonment. There was no error in the trial Judge's reasoning in applying principles of sentencing.
Cases Cited
Public Prosecutor v Keru [1985] PNGLR 78.
Counsel
B Takin, for the appellant.
J Kesan, for the State.
29 July 1994
KAPI DCJ WOODS LOS JJ:  This is an appeal against a conviction and sentence of 25 years for wilful murder, imposed by the National Court sitting in Mount Hagen in November 1993. The Court found that the appellant was in a group of men who attacked and killed a man named Napili in a payback incident at Delapena village in the Baiyer area of the Western Highlands on Tuesday 26 February 1991.
It is submitted that the conviction was unsafe and unsatisfactory for three reasons:
1.       The evidence on the intention to kill was insufficient or inadequate.
2.       The evidence on identification was insufficient or inadequate.
3.       The trial Judge erred in not giving weight on the evidence adduced by the defence.
There is also an appeal against the severity of the sentence.
On the ground that the evidence on an intention to kill was insufficient, we are satisfied that there was clear evidence before the court of a group attack on the deceased of the severity to imply an intention to kill. The motive appears to have been some retaliation for an incident earlier in the week. To inflict the injuries as described in the medical report and in the evidence of the attack could leave no doubt that there was an intention to kill. The trial Judge said in her judgment, "I find from the way the witnesses described the chase of the deceased and the blows given to him that these people went there that day with the intention of killing the man Napili". We can find no error in her finding on this point.
On the ground that the evidence of identification was insufficient or inadequate, we note the trial Judge's findings on this in her judgment: "What then this court has before it are three witnesses who say that the day the man Napili was killed there was a big crowd present. The man Mako Ranjigi was identified by people who knew him before and who had worked with him. It was a clear day, it was not raining. They said they had a good clear view, there were no trees and things in between." We are satisfied that the evidence clearly supports that finding.
The submissions have suggested that the evidence was a bit too vague about the exact place of the killing. There was, unfortunately, no opportunity to view the scene, and so the court only had a locality sketch, but no evidence of distance, and only references to attacks in a coffee garden or kaukau garden and near the toilet. However, there was sufficient reference by Mek, who, in his evidence, is asked, "How far were you from place of the deceased's murder?" and who answers, "I was here and the incident took place on main road", meaning the distance between the witness box and the road, which would be about 15 metres. This suggests that the locality was not so wide an area that there would be serious discrepancies in the State witnesses' descriptions of where the killing took place. 
It is just a pity that there were no more estimates or indications as to how far the kaukau garden was from the pastor's house and the toilet. Having clearly analysed the evidence, we are satisfied that what may appear to be discrepancies about where the actual blows were inflicted and the body fell are not such that the credibility of the State witnesses are undermined. We realise that witnesses will often give descriptions as seen from different angles and, whilst each witness may give a difference perspective, at the end it can still be the same.
Regarding the allegation of inadequate weight given to the defence evidence, the trial Judge clearly discredited the suggested alibi given by the defence witnesses. They clearly stated that they were not at the scene and did not see the killing, so, quite obviously, they could not say the appellant was not there. There was a suggestion as well from the appellant's own evidence, which completely undermined his supposed alibi, when he agreed he had met the two witnesses walking along the road, but on the Monday instead of the Tuesday when the killing took place.
ON SENTENCE
This was a deliberate attack on, and killing of, an innocent person. He was working at the mission, and he thought he had no reason to fear anything. It has been clearly stated by the Supreme Court that the fact of a tribal fight killing does not reduce the seriousness of the offence. In Public Prosecutor v Keru [1985] PNGLR 78, the Court held that the custom of payback is contrary to the general principle of humanity, and a person who commits a payback murder in accordance with his custom is entitled to no reduction of sentence because of that custom. The punishment for wilful murder at the time this offence was committed was life imprisonment, and the trial Judge carefully considered any circumstance favourable to the appellant. As she said: "After thinking about this case and the fact that the defendant was not the leader of this group, and his past good behaviour, I have decided not to follow the many precedents that tell me I must impose life imprisonment. Instead, I have decided on a term of imprisonment of 25 years in hard labour, less remand".
We find no error in the trial Judge's reasoning in applying that sentence when considering the principles of sentencing as followed and applied by our Court.
We, therefore, dismiss the appeal and confirm the conviction and sentence.
Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: Public Prosecutor.