[1998] PNGLR 208

PAPUA NEW GUINEA

[supreme court of justice]

MARK NAINAS

v

THE STATE

wewak: woods, injia, sawong jj
26 October; 7 December 1998

CRIMINAL LAW – Appeal – Practice and Procedure - Absence of judgment of the Trial Judge – Role of Supreme Court – A rehearing on the evidence given – Supreme Court Rules O 14, Div 11.

Criminal law – Appeal against conviction and sentence - Offence of rape – Section 7 involvement – Evidence lacks sufficient substance and weight.

Facts

The appellant appeals against conviction and sentence from a National Court decision that convicted him and sentenced him for counselling and procuring another person to rape the prosecutrix by operation of s 7 of the Criminal Code Act (Ch. No. 262). The trial judge’s judgment was misplaced and consequently was not available during the appeal.

Held

1.	The approach to be adopted when reviewing the conviction following a place of not guilty in the absence of the trial judge’s judgment on verdict is for this court to consider the evidence and infer findings of fact from the evidence on the face of the records and reach its own conclusions as to whether the conviction is safe or satisfactory: Pake Kik v The State (1996 Unreported) SC 511 applied.

2.	When in this situation, the appeal court should exercise greater care in evaluating the evidence before the trial judge and when drawing conclusions of fact. Any unresolved ambiguities or gaps in the evidence on the face of the record should be resolved in favour of the accused to accord with the onus and standard of proof carried by the State in criminal cases.

3.	When the trial judge did not take his own notes on the demeanour of the defence witness but relied on the note taken by the judge associate and posed to the trial judge, and subsequently relied on it, he was acting on extravenous evidence and hence fell in error. Likewise, when the trial judge acted on his own person knowledge of an earlier case incriminating the appellant, he fell in error.

4.	Under the circumstances, appeal allowed and conviction quashed.

Papua New Guinea cases cited

Imiyo Wamela v The State [1982] PNGLR 269.
Isaac Awoda v The State [1984] PNGLR 165.
Pake Kik v The State (1996 unreported) SC511.

Other cases cited

James Elliot [1909] Cr. App. R 171.
Le Caer [1971] 56 Cr. App. R 272.
R v Broadway [1957] V.R. 398.
Spillane [1971] Cr. App. R 9.

Counsels

Appellant in person.
C Manek, for the respondent.

7 December 1998

Woods j. I agree with the analysis and reasoning of Injia, J and allow the appeal, quash the conviction and order the appellant’s discharge from prison forthwith.

Injia j. The appellant appeals against his conviction on a charge of rape by the National Court sitting at Lorengau on 23 June 1995. The appellant lodged his own appeal on 5 July 1995 but due to difficulties faced in obtaining a copy of the trial judge’s judgement on verdict the appeal could not be heard earlier. It is now known that the trial judge misplaced his judgment and cannot be found, hence we proceeded to hear the appeal without the benefit of his judgment.

The judgment on verdict of a trial judge (sitting without a jury) may become unavailable for various reasons: see R v Broadway [1957] V.R. 398. In a situation such as the present where the trial judge is available but his judgment cannot be found, the Supreme Court may request him to furnish a report under the provisions of O 14 Div 11 of the Supreme Court Rules (Ch. No. 37). This would involve the trial judge re-constructing his judgment from his memory, which in a complicated case, may become practically difficult or impossible, given the passage of time between the date when the judgment was given and the hearing of the appeal. In some cases, it would be pointless to request a report in which case the Supreme Court should proceed to hear the appeal: Pake Kik v The State, Unreported Supreme Court judgment SC 511 dated 8 November 1996. In the present case, given the lapse of time and the long delay in prosecuting this appeal due to the unavailability of the trial judge’s judgment, we considered it pointless to request a report from the trial judge and proceeded to hear the appeal.

The absence of any record of the trial judge’s judgment on verdict "is not of itself a ground for saying that the conviction is unsafe or unsatisfactory"; Le Caer (1971) 56 Cr. App. R 727, at p.731; nor "the existence of a proper note a condition precedent to a good trial": James Elliot [1909] Cr. App. R 171 at 172. In order to succeed on appeal, the onus is on the appellant to show some error made by the trial judge in connection with the hearing of the case. The appellant may do so simply pointing out the error on the face of the record or by referring to his own notes or those of his lawyer taken at the trial provided the Court is satisfied that the notes are reasonably reliable: see Spillane [1971] Cr. App. R 9.

The approach to be adopted when reviewing the conviction following a plea of not guilty in the absence of the trial judge’s judgment on verdict is for this Court to consider the evidence and infer findings of fact from the evidence on the face of the record and reach its own conclusions as to whether the conviction is safe or satisfactory: Pake Kik v The State supra. When the facts in the case are not complicated as in Pake Kik’s case, our task is not difficult. When the facts are complicated, as is the present case, we have a difficult task. In either situation, the appellate court should exercise greater care in evaluating the evidence before the trial judge and when drawing conclusions of fact. Any unresolved ambiguities or gaps in the evidence on the face of the record should be resolved in favour of the accused to accord with the onus and standard of proof carried by the State in a criminal case.

Nainas and three other Defence Force seamen based at Lombrum Naval Base (the "barracks") were jointly indicted on one count of rape pursuant to s 347 of the Criminal Code Act (Ch. No. 262). The State alleged that on the night of 23/12/93, the victim, one Olivia John visited her boyfriend, one Lindsay and spent the night with him in his room in the barracks. The State alleged that in the early morning of the next day, 24/12/93, between 8 – 8.30am, she visited the house of her sister’s husband one Samson Yopoi at the barracks. The accused and his friends namely, Patrick Lawrie, Phillip Lahari and Moko Hokaia came in drunk and teased the victim and her sister. As a result they were chased out by Yopoi and they left the house. Sometimes later, the victim left Yopoi’s house, Nainas and the other three accused met her. It is alleged that Nainas told Patrick Lawrie to grab the victim, take her into the bush and have sex with her. Patrick Lawrie then grabbed her, carried her into the nearby bush. In the ensuring struggle between her and Patrick, Nainas picked up her handbag. Patrick then raped her, followed by Phillip. Moko who held her mouth assisted Phillip. Patrick and Phillip were charged as principal offenders whilst Nainas and Moko were charged under s 7 of the Criminal Code Act because they "counseled/procured and aided/abetted" Patrick and Phillip and were convicted accordingly.

The evidence for the State consisted of both documentary and oral evidence. The evidence against Nainas was given by a few of the State witnesses called.

The victim Olivia John was the principal State witness. Her evidence was that she knew Nainas very well. She and Mary spent the night with her boyfriend Lindsay in his room. The next morning Lindsay went to work, so she followed Mary to Samson Yopoi’s house where they had tea. Whilst she was at Yopoi’s house, four soldiers, "Patrick, Moko, Nainas and Phillip came in … with half SP beer bottles" in their hands. Then "they came and were touching my body." Samson got angry and chased them out. She then left Samson’s house a little later to go to Lorengau. As she walked out she saw Nainas. Further up Alpha Block, she saw Patrick. Nainas said to Patrick, "Go and grab her and take her into the bush" which Patrick did. She resisted and struggled and Patrick removed her bag from her shoulder and "Nainas came and got the bag". Patrick carried her into the bush and when Patrick "wanted to rape me, however Phillip and Nainas disturbed him, so he carried me further down underneath a chilli and raped me." Later Lahari raped her assisted by Moko who held her down and closed her mouth. Later, she told Captain Benny what happened and told him Nainas got her bag. Captain Benny then sent for Robert Kambak to retrieve her bag from Nainas, which the latter did.

Milly Sampson said he saw the four accused drinking together in the early morning of 24/12/93.

Mary John said she personally knew Nainas but not the other three accused. She said she saw the other three accused at Samson Yopoi’s house when they were drinking tea. She did not specifically say if she saw Nainas at Yopoi’s house. Later she left Yopoi’s house whilst the victim was still in the house. On the way the appellant held her hand and helped her get out of the danger zone, telling her that this was a place where women got attacked and she should get out quickly.

Captain Benny said he received complaint of rape from the victim and the victim told him Nainas got her bag. He then told Private Kambak to get the bag from Nainas, which he latter did.

Captain Benny said in evidence in chief that Olivia told him to retrieve the bag from Nainas who got her bag. He then told Robert to fetch the bag from Nainas, which Robert did. Robert brought the bag to where he and Olivia were. In cross-examination Captain Benny said the victim only told him "Nainas got her bag from her."

Samson Yopoi said he saw Patrick and "the other three accuseds and others" who came in "drunk" and "touched them" (the girls) and he chased them out. He only recognised Patrick but "the others went in and the other three accuseds must have come in too."

The defence case consisted of Nainas’ oral evidence and his statement in the record of interview supported by Robert Kambak. Nainas admitted drinking for 6 hours on the night before, but was not drunk that next morning. He said he saw the victim and her sister in Cabin 2 of Charlie Block but didn’t enter the room. He saw them and left. Then he saw Lawrence Lui calling out in a drunken state: "I will kill myself." So he ran up to Lui to hold him. On the way he saw a black bag before Alpha and Charlie Block. Not knowing whose bag it was, he picked it up. Later Robert Kambak came and asked him if he saw one bag but Nainas didn’t know whose it was. So he gave the bag to Robert and Robert went away. He didn’t know why the victim told Benny he took her bag. He denied accompanying the three other accused that morning to Samson Yopoi’s house.

The trial judge made the following note of the conduct of the appellant in the witness box:

Note:	Court has noted report from associate who observed during the cross-examination that witness Nainas was looking directly at the co-accuseds, who were making facial expressions to him, before answering questions."

Robert Kambak said he was simply told by Captain Benny to get Olivia’s bag. As he turned, he saw Nainas and he asked him if he saw Olivia’s bag. The appellant said he found a bag and he gave the bag to Robert who took the bag to Captain Benny. He denied Captain Benny’s evidence, that Captain Benny told him to fetch Olivia’s bag from the appellant.

At the trial, a private counsel represented the appellant. The appellant has filed and argued his own appeal. The grounds of appeal set out in his notice of appeal filed on 5 July 1995 are:

"I did not have sexual intercourse or even rape the victim."

"That I never grabbed a bag from the victim but I did picked up a black bag beside the road near Alpha Block, without knowing who own the bag."

"I did not use the words holim em na karim em igo long bush on the victim but I did use the words Holim em on Mr Lawrence Lui a soldier whom I tackled in front of Alpha Block. He was trying to kill himself that’s why I shouted to him."

"The private lawyer which represent me and three (sic) others fought for identification for the four of us which I feel that he was wrong. Instead I should be separated from the rest and that he should have fought for above three reasons and not on identification as I have stated to the Police and the State that I know the victim well and vice versa."

At the hearing of this appeal, the appellant went at length to expound on his reasons for saying that the trial judge should not have accepted the State witnesses’ evidence, in particular the victim’s evidence, and he pointed out to various parts of the evidence which in his view contained inconsistencies and gaps in his endeavour to show that the conviction was unsafe or unsatisfactory. The main points he raised in his submissions before us are:

1.	His lawyer fought the case based on identification whereas he should have fought it on the basis of false evidence by the victim and inconsistencies in her evidence; accepting that he was well known to the victim and she would not have made any mistakes as to his identification in broad-daylight.

2.	He was not part of the drinking team made up of the other three other accused and others. This was confirmed by the three other accused in their evidence.

3.	The Court did not allow him to call his witness in Lawrence Lui, who at the time of trial was engaged in active duty on Bougainville.

4.	Even when the case was fought on the issue of identification, inconsistencies and gaps existed in the evidence. For example, the victim did not identify what clothes he wore that day when she could identify the clothes worn by the other three accused.

5.	That he (the appellant) told those same unknown person in the area to "Holim em" referring to Mr Lawrence Lui, the drunken soldier, because he was about to fall off.

6.	That he picked up the bag on his way to help Mr Lui and put it in his room at the barracks.

7.	That the victim acted on the knowledge that he got her bag and she must have told Captain Benny to fetch her bag from him, and later fabricated the story that he was involved.

8.	If he was with Patrick and took her bag, he would not have returned her bag through Robert. He would have denied knowledge of the bag.

9.	If he knew the victim was about to be or being raped, he would not have helped Mary get out of the danger zone. If he helped Mary, whom he knew, he would also have helped the victim whom he knew very well.

I have carefully studied the line of defence conducted by the defence counsel on behalf of this particular appellant and find that all the matters referred to by the appellant in No.1-9 inclusive (above) are matters which were adequately addressed by the appellant’s counsel at the trial.

In essence, the appellant appears to be agonising over what he perceives to be his lawyer’s inability to conduct his defence properly. However, the transcript of proceedings of the court below shows that his counsel with reasonable care and skill ably conducted the accused’s defence. The victim’s identification of this appellant as the one who told Patrick to grab her and take her into the bush and later took the bag from the victim was ably challenged on the basis of outright denial. The victim’s evidence that this accused came into Yopoi’s home with others and teased her was challenged on mistaken identification. The defence case was conducted on the basis that this appellant was not a party to the actual rape. These defences were open to this appellant in the circumstances. In these circumstances, I infer that the appellant’s attempt now to shift the blame to his counsel is the appellant’s own making of wishful thinking in the aftermath of a trial, the result of which did not favour him. Therefore, I am unable to conclude that the conduct of the appellant’s counsel at the trial contributed to a substantial miscarriage of justice: Isacc Awoda v The State [1984] PNGLR 165.

On the one hand the State appears to argue that appellant’s assertions in that he shouted "Holim em" referring to Mr Lawrence Lui and he picked up the bag on his way to help Lawrence Lui tend to show his attempt to evade the incriminating parts of the victim’s evidence on some very narrow path, hence lending more credibility and weight to the victim’s evidence in those material areas.

The State also appears to argue that Robert Kambak’s evidence also appears to be evasive. His evidence that Capt. Benny only told him to fetch Olivia’s bag from someone and yet he went straight to the appellant and got the bag from him is only plausibly explicable from the inference that he was told by Captain Benny to fetch the bag from Nainas.

The State appears to argue that the appellant was well known to the victim and her identification of him in his stated role in broad-daylight was clearly established. Her evidence could only be credibly challenged on the grounds that she was lying against him. This was ably done by his counsel at the trial but with no success because not one blatant lie was established in cross-examination of the victim. Further the victim maintained she was telling the truth and not one motive for the appellant’s counsel suggested false evidence to her.

On the other hand, taking first the evidence against the appellant on its face value, the appellant appears to be arguing that although there is evidence that he was with the 3 others at Yopoi’s house, there is no clear evidence pinpointing him teasing or poking the victim or orchestrating the others. There is also no clear evidence of what the appellant’s motive was when he took the bag from the victim. There is no clear evidence of him saying or doing anything to assist Patrick in his struggle to take the victim to the bush. There is no clear evidence from Captain Benny who was the first person the victim spoke to after the rape, of the victim saying Nainas told Patrick to grab her and take her to the bush, apart from she only telling Captain Benny that Nainas took her bag.

The appellant also appears to be arguing that Captain Benny does not clearly say if the victim told him Nainas took her bag and he told Robert to go and retrieve the victim’s bag from Nainas.

The appellant appears to be saying that the only clear incriminating evidence of complicity from the State witnesses is that of the victim where she said Nainas told Patrick to "go and grab her and take her into the bush" to which Patrick responded by doing so. But even taking this statement on its face value, albeit suggestive, is vague. It could not necessarily be understood to only mean Patrick should grab her, take into the bush and rape her. Patrick as drunk as he was, appeared to be bent on raping the victim without any incitement or encouragement from anyone including the appellant.

It could be argued by the appellant that in these circumstances, his evidence, even if he was found to be lying, does not improve the State’s evidence, which was vague and flimsy in material areas. To go further and draw inferences adverse to the appellant as pressed upon the court by counsel for the State, in these circumstances require the court to meander into uncertain waters in the pursuit of sustaining conviction.

It is submitted by counsel for the State that these sort of arguments by the appellant, albeit seemingly attractive they might appear to be, ignore the practical realities of the totality of events this day from which the appellant’s participation in the crime can be inferred as a matter of practical common sense.

I am mindful of the special advantage the trial judge enjoyed in listening to the evidence of the witnesses and observing the demeanour of witnesses and evaluating the evidence and making appropriate findings of fact in favour of the State’s case. However, in the absence of his judgment, and any notes taken by the appellant or his counsel to assist us, we must evaluate the evidence on the face of the record afresh and decide the facts as well as the law for ourselves.

There are several aspects of the State evidence and observations of the trial judge apparent on the face of the record which concern me:

1.	The arguments advanced by the appellant in relation to the State’s evidence are reasonable arguments, which shed some doubt as to the accused’s participation in the crime. Of particular significance is that there is no clear evidence from the victim and Yopoi of seeing the appellant at Yopoi’s house with the others teasing and poking the victim. Also of particular significance is that there is no evidence from Captain Yopoi, the first person to whom she reported the rape, of the victim telling him that the appellant encouraged Patrick to rape her by telling Patrick to grab her and take into the bush. She only told Captain Benny about the bag taken by the appellant. Even then she did not tell Captain Benny that the appellant helped Patrick by removing her bag from her shoulder.

2.	The trial judge did not make any notes of his own observation of the witnesses’ demeanour. The only note on demeanour relates to a report by his Associate as to what his Associate observed of the appellant’s conduct in the witness box. Such observations of the Associate communicated to the trial judge should not have been entertained by the trial judge because it is extraneous information which is likely to prejudice the trial judge. This was a fundamental error committed by the trial judge.

3.	The trial judge made reference in his judgment on sentence to an earlier pack-rape incident at the same barracks where the appellant was charged but the charge was withdrawn. It appears that the point was not raised by counsels in the submissions on the evidence and only mentioned by the counsels on submission on sentence. His Honour said:

"Your case is very similar to that case, The State v Bruno Kaski, Alex Amos and Samson Willie which was in fact decided in January 1994 shortly after you were all arrested. In fact, if my memory serves me correct, you, Mark Nainas was also alleged to have been involved in that case, however your case was withdrawn. That case was one of the worst type of pack rape and the facts are quiet different to the facts of your case. The only identical aspects are that the rape were committed in Lombrum, both cases involved drunken servicemen and both matters proceeded to trial."

In my opinion, the trial judge erred in allowing his mind to be coloured by his own prior knowledge of the appellant’s previous alleged misbehaviour as to the earlier rape incident. This was another fundamental error committed by the trial judge.

These and other unsatisfactory aspects of the case pointed out by the appellant have led me to conclude that although the appellant may have been present in the vicinity of the area where the rape occurred at the material time, the evidence against him is so lacking in sufficient substance and weight to clearly establish the appellant’s participation under s 7 of the Criminal Code Act to the satisfaction of the required criminal standard of proof. I would allow the appeal, quash the conviction and order the appellant’s discharge from prison forthwith.

Sawong j. The evidence and facts surrounding conviction are adequately set out in the judgement of Injia, J. The appellant was convicted as a principal offender under s 7(1)(d) of the Criminal Code Act. Section 7(1)(d) reads:

"7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:-

(d)	any person who counsels or procures any other person to commit the offence."

This provision (i.e. s 7(1)(d)) makes criminally liable "any person who counsels or procures any other person to commit the offence". This provision has been considered in Imiyo Wamela v The State [1982] PNGLR 269. It was said in that case that on a charge of being a counsellor, it is not enough to show that the defendant knew that some illegal venture was intended. However, it is not necessary that knowledge of intention to commit a particular crime, which was in fact committed, should be shown. The prosecution must show that the defendant knew that an offence of the kind that was committed was intended and with that knowledge did something to help the offender commit it.

I apply these to the facts of the present case. These evidence shows that before the offence were committed, the appellant with several other men went into Samson Yopoi’s room where the victim and her sister were having breakfast with the said Samson Yopoi. Then the appellant and the others accosted the victim and her sister. Because of that Yopoi chased them out of his room. Soon after that incident, the victim left Yopoi’s room and as she was walking and heading towards the bus stop the appellant called out to Patrick "go and grab her and take her into the bush". Thereafter, Patrick responded and took hold of one of her hands. She resisted but he said he would hold her hand and walk her to the bus stop. She refused his advances, and she continued walking but he (Patrick) came and held her with both of his hands. He then carried her into the nearby bushes and during that course the victim was struggling and so Patrick removed her bag and the appellant came and got her bag. He (Patrick) then carried her to a tree and there underneath it he tried to rape her but the appellant and one other person disturbed him. Because of that disturbance Patrick carried her away to another place.

The appellant denies all this evidence, though he admits that he knows the victim quite well.

It is to be noted that in cross-examination, counsel for the appellant did not put to the victim that the appellant did not say or used the words "Go and grab her and take her into the bush" to Patrick. This evidence was not tested in cross-examination.

In the light of the evidence and the legal principles set out herein, the trial judge in convicting him of the view that the appellant has not shown any identification error makes me. It follows that the appeal is dismissed and I would confirm the conviction.

Order of the Court

Appeal upheld.

Conviction and sentence quashed.

Appellant to be discharged from custody forthwith.

Appellant in person.
Lawyer for the respondent: Public Prosecutor.