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Konz v The State [1994] PGSC 4; SC466 (29 July 1994)

Unreported Supreme Court Decisions

SC466

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 153 OF 1993
PETER MOLU KONZ
V
THE STATE

Mount Hagen

Kapi DCJ Los Salika JJ
28-29 July 1994

Counsel

Appellant in Person

V Noka for the Respondent

29 July 1994

KAPI DCJ LOS SALIKA JJ: This is a prisoner appeal from the decision of the National Court in Mt Hagen whereby the said National Court convicted and sentenced the Appellant for a term of 8 years on a charge of rape. The appellant has instituted the appeal and argued it himself.

The appellants reasons and grounds for appeal are as contained in his Notice of Appeal. They are:

“1. The Record of the Criminal Investigation Division (CIS) against me is not true.

2. Criminal Investigation Division gave a statement that I was on probation for 2 years which was not true.

3. Medical report was not signed by the medical workers.

4. No witnesses at the court from the victims side."

We have considered all the grounds of appeal and we find that Grounds 2, 3 and 4 have no merit and dismiss those grounds.

However we consider that Ground No. 1 has merits and we deal with it now.

The appellant pointed out that the trial Judge had misunderstood his evidence when she in her Judgement referred to his evidence on whether she saw two girls or one girl. The appellant submitted that his evidence was consistent in that he in his statement to the police said he saw two girls walking at the gate. Then at another place and point in time he saw one girl. In his oral testimony to the Court he said the same thing.

The learned trial Judge found that the appellant had exaggerated his evidence which she said brought the appellants credibility into question. One of the factors that questioned the credibility of the appellant in the trial Judges mind at the time was whether the appellant had seen two girls or one girl. Having perused the evidence that was before the learned trial Judge, we with respect, are of the view that the trial Judge misunderstood the appellants evidence with regard to how many girls he saw. The evidence as we now understand it, is that at the relevant point and place the appellant saw one girl. The learned trial judge was of the view that the appellant was changing his story about how many girls he saw. That misunderstanding of the evidence in our view had caused the trial Judge to make adverse findings in relation to the appellants credibility. Credibility was the main factor in this case that determined guilt or otherwise of the appellant. As we have found that the trial Judge had misunderstood that vital piece of evidence it would be unsafe to allow the conviction to stand.

We accordingly quash the conviction and sentence and discharge him forthwith.

Appellant in Person.

Lawyer for the Respondent: Public Prosecutor