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Kawui v State [2013] PGSC 21; SC1239 (27 June 2013)

SC1239

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 27 OF 2010

BETWEEN:

SEBBY KAWUI and JOE KAWUI
Applicants

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA

Respondent

Wewak: Lenalia, Hartshorn, Makail JJ
2013: 26th, 27th June

CRIMINAL LAW – review of convictions for murder – s.155 (2) (b) Constitution – whether there is a reasonable doubt as to the "safeness or satisfactoriness" of the verdict – a reasonable doubt raised in the medical evidence concerning the death of the deceased

Facts:
The two applicants were convicted of murder after a trial. They were both sentenced to 15 years imprisonment with hard labour. They seek a review of their convictions and the sentences imposed pursuant to s. 155 (2)(b) Constitution.

Held:

1. In all the circumstances there are reasonable doubts as to the "safeness or satisfactoriness" of the verdict against the applicants.
2. Consequently, the applicants' review is upheld and their convictions and sentences are quashed.

Cases cited:

John Beng v The State [1977] PNGLR 115, SC112
Avia Aihi v The State [1981] PNGLR 81

Counsel

Applicants in person
Mr. A. Kupmain, for the Respondent

27th June, 2013

1. BY THE COURT: The two applicants were convicted of the murder of Mati Arakol after a trial. They were both sentenced to 15 years imprisonment with hard labour. The applicants appeal their convictions and the sentences imposed. As their notices of appeal were filed about six days after the requisite 40 day period we consider the matter by way of review pursuant to s. 155 (2)(b) Constitution.

Facts

2. The applicants were found guilty of the murder of the deceased that occurred in a fight between them. During the fight the applicant Joe Kawui was adjudged to have hit the deceased on the chest with a large stick which resulted in the deceased suffering a heart attack from which he died. The applicant Sebby Kawui was adjudged to have aided and abetted his brother in the deceased's murder.

3. The respondent State contends that upon a review before the Supreme Court an applicant must explain why he failed to lodge his appeal in time and why his case merits a hearing before the Court; and that here the applicants' have not done so.

4. Section 155(2)(b) Constitution provides that this Court has an inherent power to review all judicial acts of the National Court. The relevant legal principles were pronounced in Avia Aihi v. The State [1981] PNGLR 81. These equate essentially, to the Court exercising its discretionary power where it is in the interests of justice to do so.

5. In this case on the face of it, the lack of reasons for the late filing of the appeal and why the applicants' case merits a hearing, would render the review incompetent. Given that this was a "prisoner's appeal" with the applicants representing themselves, in the interests of justice, we have decided to consider it.

6. As to their conviction, the applicants' in essence contend that they were not responsible for the deceased's death. They contend that the deceased had earlier fought with a group of boys and that caused his death, that Joe Kawui did not hit the deceased with a large stick, that the deceased had consumed home brewed alcohol and that caused his death and that the deceased's death was caused by him running away during the fight and bumping into a coconut tree.

7. Counsel for the State submitted that the grounds of appeal that have any substance concern the cause of death and question the credibility of the State's witnesses and its evidence.

8. As to an appeal against conviction, s. 23 (1) (a) Supreme Court Act states:

"Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that –

a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;....."

9. The Supreme Court case of John Beng v. The State [1977] PNGLR 115, SC112, after considering various authorities, held that the equivalent section in the former Supreme Court Act 1975 should be interpreted to mean that:

"the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed."

10. From the transcript and his reasons for convicting the applicants, it is clear that the trial judge formed the view that it was beyond reasonable doubt that the heart attack that the deceased sustained was caused by a forceful blow to the chest. The cause of the injury to the chest in the view of the trial judge was the critical issue. The trial Judge formed the view that the heart attack was so caused because of the opinion contained in the post-mortem report and the evidence given by one of the persons who performed the post-mortem and proof read the report, Dr. Felix Biaku.

11. It is evident that the trial judge questioned Dr. Biaku in detail about the possible causes of a heart attack. Dr. Biaku's evidence though, in our view, is open to differing interpretations. It is clear that Dr. Biaku maintained the opinion that was contained in the post mortem report that the findings of the post mortem suggested that the deceased's death was due to a massive heart attack due to a forceful blow to the chest with a blunt object.

12. However, at p81 line 20 of the Appeal Book, Dr. Biaku states in answer to the trial judge:

".... a tear must be associated with some form of trauma or with the collection of free blood, yes, there are some other symptoms with medical condition that can give blood or fluid within the pericardial cavity."

13. In our view this raises a doubt as to the cause of the deceased's heart attack. Further, in his evidence Dr. Biaku in answer to the question by the trial judge whether a narcrotic right atrium with a tear is the difference between an independent heart attack and a heart attack prompted or caused by an impact, replied at p90 line 30 Appeal Book:

"I would say it is definitely independent from the traumatic - from what we saw. It was independent and we saw the appearance of the heart a bit different, and, for example, it would appear to be dead or ischemic but there will not be any tear or necrotic."

14. Then at p94 line 40 Appeal Book, Dr. Biaku in further cross-examination states that:

"... there were some evidence of necrosis because the post mortem was conducted five days after and we know when somebody dies the decomposition is taking place."

15. Given the evidence of Dr. Biaku that an independent heart attack as distinct from one that is caused by trauma, would not have signs of necrosis, and the evidence of necrosis found in the deceased's heart being explained by him having died five days before the post-mortem was conducted, not that his heart attack was traumatic, raises in our view doubt as to whether the deceased's heart attack was in fact caused by trauma.

16. Given the above, we are of the view that a reasonable doubt has been raised in the evidence of Dr. Biaku as to whether the heart attack of the deceased was caused by trauma, as alleged by the State, or was caused independently of trauma. Consequently, as the applicants have been convicted of causing the death of the deceased by the infliction of trauma, they should be given the benefit of this reasonable doubt.

17. If the applicants are not given the benefit of the doubt on this issue, another issue is whether the deceased's heart attack was caused by the applicants' inflicting trauma, or by the deceased running, slipping and falling, or running into a coconut tree.

18. The trial judge in his reasons for conviction rejects the evidence of the witness Douglas Kauten because he said amongst others, that it was not consistent with the injuries of the deceased contained in the post mortem report and that Mr. Kauten said that he could see what occurred but that the other witnesses could not because it was dark.

19. A consideration of Mr. Kauten's evidence reveals though that he did not falter under cross examination and that he explained how he managed to see by virtue of a kerosene lamp that had been lit. Mr. Kauten said that he saw the deceased run and hit himself on a coconut tree. Dr. Biaku also gave evidence that the deceased's injury would have been caused if a person fell on a hard surface or hit against a hard surface.

20. To our minds, this raises a further reasonable doubt as to how the deceased's death was caused.

21. Given the above, we are satisfied that in all the circumstances there are reasonable doubts as to the "safeness or satisfactoriness" of the verdict against the applicants.

22. Consequently, the applicants' review is upheld and their convictions and sentences are quashed.
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Applicants in person
Office of the Public Prosecutor: Lawyers for the Respondent