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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COUR OF JUSTICE]
SCRA 19, 20 & 31 of 2011
BETWEEN:
BOTCHIA HAGENA,
PETER TAUL and
TOBUNG PRAIDE
Appellants
AND:
THE STATE
Respondent
Kokopo: Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia & Pitpit, JJ
2016: 25th October
2017: 11th December
APPEAL - Appeals against convictions and sentences – Convictions on eight counts of wilful murder – Maximum penalty – Evidence of an accomplice – Direct evidence – Circumstantial Evidence - False alibis – False denials – Corroboration – Evidence of an accomplice corroborated – Not necessary for trial judge to warn himself regarding evidence of an accomplice – Convictions safe.
APPEAL – Evidence – Records of interview - One appellant making full admissions – Two other appellants electing not to answer questions – Belated attempts by two appellant during trial to create alibis – False alibis and false denials by appellant – Attempts by the appellants to remove themselves from the crimes – False alibis and false denials amounting to corroboration of evidence of an accomplice and other prosecution witnesses – Convictions affirmed -Appeals against convictions dismissed.
APPEAL – Appeals against sentences – Multiple killings – Robbery - Robbery in the high seas tantamount to piracy – Cold blooded killings committed in the high seas by seven armed men – Use of dangerous weapons – Victims shot with guns and viciously attacked with a bush knife – Ambush - Surprise attack – Use of mobile phones to execute plan to kill - Victims attacked in a boat - Revenge killings – Victims unarmed – Victims had no way of escaping – Victims known to the ring leader – Victims related to the ringleader – Victims pleas for mercy ignored – Victims comprised of men, women and children.
APPEAL – Appeals against sentences – Severity of sentences – Elaborate planning of the crimes which at least took two days – Use of mobile phones, speed boats and guns to execute the plan – High degree of sophistication in planning and execution of the plan to kill – Agreement between the appellants to kill the victims –All appellants willing and active participants in the killings – Ring leader explaining clearly to other appellants his strong desire to kill the victims – Other appellants pledging their total support to the ringleader to kill the victims – Ring leader informing other appellants his plans to ambush the victims in the high seas where the victims could not escape – Victims totally innocent, unarmed and unable to defend themselves – Worst kind of wilful murder – Sentences affirmed - Appeals against sentences dismissed.
Facts
All the appellants, including Allan David (Allan) the principal prosecution witness and an accomplice knew each other well. Their leader, Gregory Kiapkot (Gregory) is now deceased.
On 25 September, 2007, the appellants and Allan met Gregory at Kokopo beach. Gregory bought two bottles of negrita rum and a bottle of coke and invited the appellants and Allan to go with him to Tavui No. 1 village along Nonga Road. They all travelled by a PMV bus to Rabaul then got on another PMV bus to Tavui No. 1 village. They went to the nearby beach where they drank the negrita rum and coke.
While they were still drinking, Gregory and a couple of accomplices left the rest still drinking. They returned to the beach late at night with two dinghies, two firearms and a bush knife.
Sometime later, Gregory called the appellants, Allan and other accomplices and told them about his plan to kill the owners of a dinghy called Palex from West Coast, Namatanai, New Ireland Province, the next day when they travelled from Kokopo to West Coast, Namatanai. He asked them for their help. Gregory was from the same village as Palex owners and was related to them. He told the appellants, Allan and other accomplices about the owners of Palex having a fight with his uncle in their village sometime back. During the fight Palex owners broke his uncle’s leg. He took his uncle to Kavieng General Hospital where he received treatment. When his uncle’s leg did not heal, he took him to Nonga Base General Hospital, in East New Britain Province for further treatment. He said he paid a lot of money for his uncle’s medical treatment. The owners of Palex were supposed to compensate his uncle but they did not and it made him very angry and it was time for him -“to eat their shit”.
After Gregory spoke, the appellants and other accomplices, including Allan pledged to help Gregory kill the Palex owners the next day. Mobile phones were given to a number of accomplices by Gregory so that they could communicate with each other. They all discussed and planned to kill Palex owners the next day when Palex travelled between Kokopo beach and West Coast, Namatanai. They all slept at the beach that night.
The next day on 26 September, 2007, Gregory and a number of accomplices went ahead towards the Duke of York Islands in one of the dinghies. Other accomplices, including Allan followed later in the other dinghy. One accomplice was left at Kokopo beach with a mobile phone so that he could monitor the movements of Palex and inform them when it left Kokopo beach for West Coast, Namatanai.
When Gregory and his accomplices arrived at a location called Makada Point, at the Duke of York Islands, they met Botchia Hagena (Boptchia) who then joined them. Not long after, their accomplice at Kokopo beach phoned them and told them that Palex had left Kokopo for West Coast, Namatanai.
When Palex arrived at Makada Point, Gregory and his accomplices including Allan blocked it with the two dinghies from the front and back. One of Gregory’s accomplices shot dead the driver of Palex and a crew. Thereafter, Gregory and his accomplices boarded Palex and stole all its cargo, then killed all the passengers.
Allan and a few other accomplices travelled back to Matupit point in East New Britain Province. They later went to Kokopo, on the next day, they got on a dinghy and travelled to West Coast, Namatanai. While they were staying at a village called Lokon, news came that Palex had been found with the decomposing body of a female passenger still in it.
When Allan heard this he became very worried. He could not eat or sleep properly so he confided in a village Pastor who counseled him and urged him to speak out about the thing that was bothering him. Allan said while he was at Lokon, there was a weeklong church rally, which he attended. The people were praying for “exposal” (sic). He said after talking to the Pastor, he feared God so he wanted to speak out about the “incident”. He told the Pastor that he wanted to talk to the police. The Pastor then arranged with the police from Namatanai to go to the village and talk to Allan. The police later interviewed Allan in which Allan confessed the killings.
There was evidence that during the investigation, the police threatened Allan. Allan also spent more than a year living with the arresting officer. Allan admitted this but the arresting officer denied it.
Held
1. The learned trial judge correctly warned himself of the dangers in accepting and relying on uncorroborated evidence of an accomplice to make findings of guilt. In this case however, the evidence of an accomplice was corroborated by independent evidence as well as false denials, which amounted to corroboration. Thus there was no need for the learned trial judge to warn himself: Gavara-Nanu; Mogish; Kangwia and Pitpit JJ; (Hartshorn J, dissenting). John Jaminan v. The State (No.2) PNGLR 318 followed and adopted; The State v. Marianno Wani Simon (1987) N600, adopted with approval.
2. The accomplice who was also the principal prosecution witness was honest and truthful, as his decision to confess the killings came from a contrite heart, and was motivated by deep and profound religious conviction: Gavara-Nanu; Mogish; Kangwia and Pitpit JJ.
3. It was unsafe for the learned trial judge to accept and rely on an uncorroborated evidence of an accomplice to make findings of guilt against two of the appellants who denied the charges; especially when the accomplice was threatened by police during investigations and after he had admitted living with the arresting officer for over a year before trial: (Hartshorn J). Abraham Saka v. The State (2003) SC719, discussed and adopted.
4. The wilful murders were committed with dangerous and lethal weapons. There was pre-meditation and elaborate planning of the crimes.
There was high degree of sophistication in the planning and execution of the crimes. Dinghies (speed boats), and mobile phones were
used to plan and execute the crimes. Extreme violence was used on multiple victims, which included women, children and elderly. Crimes
committed in the high seas. Victims were unarmed and helpless they had no way of escaping. The wilful murders were the worst kind.
Maximum penalty of death warranted: Ure Hane v. The State [1984] PNGLR 105; John Elipas Kalabus v. The State [1988] PNGLR 193; Manu Kovi v. The State (2005) SC789 and Steven Loke Ume v. The State (2006), adopted.
Cases Cited:
Papua New Guinea Cases
Abraham Saka v. The State (2003) SC719
Acting Public Prosecutor v. Konis Haha [1981] 205
Alois Erebebe v. The State (2013) SC1228
Ari Pugiso Inatia v. Detective Lawrence Israel (2013) N5206
Ben Wafia v. The State (2006) SC851
Gimble v. The State [1988-89] PNGLR 271
John Beng v. The State [1977] PNGLR 115
John Elipa Kalabus v. The State [1988] PNGLR 193
John Jaminan v. The State (No.2) [1983] PNGLR 318
Kawaso Ltd v. Oil Search PNG Ltd (2012) SC 1218
Keko Aparo and Ors v. The State (1983) SC249
Les Curlewis v. David Yuapa (2013) SC 1274
Manu Kovi v. The State (2005) SC789
Private Nebare Dege v. The State (2009) SC1308
Public Prosecutor v. Tardew [1986] PNGLR 91
Steven Loke Ume v. The State (2006) SC836
Taita Pritchard v. The State (2016) SC1541
The State v.Amoko Amoko [1981] PNGLR 373
The Sate v. Ben Noel (2002) N2253
The State v. Clarence Tema Mongi (2007) N3259
The State v. Francis Natuwohala Laumadava [1994] PNGLR 291
The State v. Kelly Minong (2016) N6271
The State v. Marianno Wani Simon (1987) N600
The State v. Micky John Lausi (2001) N2091
The State v. Morobet Awui Koma [1987] PNGLR 262
The State v. Nataemo Wanu [1977] PNGLR 152
The State v. Tauvaru Avaka (2000) N2024
The State v. Titeva Fineko [1978] PNGLR 262
The State v. Tom Morris [1981] PNGLR 493
The State v. Upano Manake (No.2) N3504
Ure Hane v. The State [1984] PNGLR 105
William Norris v. The State [1979] PNGLR 605
Overseas Cases
Air Marshall MacCormack and Anor v. Vance (2008) ACTA 16
Cranssen v. R (1936) CLR 509
House v. King [1936] H.C.A 40; (1936) 55 CLR 509
Woon v. R [1964] HCA 23; (1964) 109 CLR 529
Counsel:
J. W. Tamate, for B. Hagenia and T. Paraide
L. Mamu, for P. Taul
P. Kaluwin, for the State
11th December, 2017
An accomplice called as a prosecution witness
16. The alleged incident happened on Wednesday and on Saturday while Allan was still at Lokon village he heard that Palex had been found with a dead body of a woman in it. He said when he heard that, he felt uncomfortable and he could not eat and sleep properly. He then went to a nearby village called Bimun. He said he was scared that police might shoot him, he thought things over and decided to reveal the “incident”. In other words, he decided to confess the killings.
17. In his evidence in-chief Allan said it was a week after the incident that he “surrendered” and confessed the killings. At the trial, he identified the iron bar which he said Botchia was holding when he saw him at Makada Point.
18. Allan told the Court that he was of mix Tolai and New Ireland parentage. He grew up at Pila Pila village in East New Britain Province, which was where Peter and Tobung were from. He said he had known both Peter and Tobung since childhood.
19. In cross-examination, Allan was asked to explain why he decided to reveal the “incident”. He said – “That time I did not feel comfortable. At that time people were praying for exposal (sic.). Also a pastor did tell me or talk to me to surrender”.
20. Still in cross-examination he was asked further questions about his encounter with the Pastor. He was asked – “Allan, can you tell the court how the pastor knew you were involved in this incident?” His answer was – “I did not – I was not comfortable. I did not eat properly or sleep properly for he could see that I had a problem and he told me if you have whatever is within you, you have to confess”. He said from Saturday, after the Wednesday when the alleged incident happened, he was staying at Lokon village attending a “church rally” until the following Wednesday, which was a week after the alleged incident when the rally ended. On the following day which was a Thursday he went to Kavieng.
21. It was following his discussion with the Pastor from Bimun village that the Pastor rang the Namatanai police and told them that Allan wanted to speak out about the incident. As a result the police from Namatanai went and apprehended him. Allan told the Court that he feared God that was why he decided to reveal the incident.
22. Allan being an accomplice, the learned trial judge appropriately warned himself about the dangers in accepting and relying on Allan’s evidence to make findings of guilt against the appellants.
23. In warning himself, his Honour said:
“...The law in this country is that an accused person may be convicted on the evidence of an accomplice alone, however it would be dangerous to do so: The State v. Titeva Fineko [1978] PNGLR 262. Therefore the trial judge ought to caution or remind himself of this danger in relying on the accomplice’s evidence: The State v. Amoko Amoko [1981] PNGLR 373. I remind myself of this principle in particular given the circumstances of this case and in particular because of the evidence given by two accomplices.”
24. The essential requirement in this principle is that, the courts must warn themselves of the dangers in accepting and relying only on an uncorroborated evidence of an accomplice to make findings of guilt. Thus for the warning to become necessary, the evidence the court is relying upon must first be of an accomplice and second that it is uncorroborated. It follows that if the evidence of an accomplice is corroborated, it would not be necessary for the court to warn itself. To fully appreciate this principle, its rationale has to be appreciated as well, which is to prevent a possible risk that the accomplice may fabricate evidence against an accused to exonerate himself of the offence or to shift the blame to the accused and the accused being convicted only on the evidence of an accomplice who was himself a perpetrator of the offence: The State v. Titeva Fineko [1978] PNGLR 262; The State v. Francis Natuwohala Laumadava [1994] PNGLR 291; The State v. Amoko-Amoko [1981] PNGLR 373; The State v. Nataemo Wanu [1977] PNGLR 152 and Ari Pugiso Inatia v. Detective Lawrence Israel (2013) N5206.
25. Where evidence relied upon by the court to make a finding of guilt is of an accomplice and that it is uncorroborated, the failure by the court to warn itself of the dangers in accepting such evidence would amount to an error of law: Abraham Saka v. The State (2003) SC719.
26. However, it should also be noted that there is no rule against an uncorroborated evidence of an accomplice being relied upon to make a finding of guilt as long as the evidence is strong and cogent and is compelling or convincing and that the trial judge had warned himself of the dangers in accepting such evidence: The State v. Francis Natuwohala Laumadava (supra) and The State v. Nataemo Wanu (supra).
27. The pertinent question then is – Was Allan’s evidence uncorroborated in order for there to be a need for the learned trial judge to warn himself? In other words, was it necessary for the learned trial judge to warn himself regarding Allan’s evidence?
28. To answer this question, one has to start by looking at the records of interview for each of the appellants and other evidence generally. All the appellants denied having any knowledge of the alleged killings except Tobung who made full admissions. However, it is trite law that admissions made by Tobung in his record of interview cannot be used against the other appellants: Keko Aparo and Ors v. The State (1983) SC249 and The State v. Kelly Minong (2016) N6271. The admissions would be admissible only against him.
29. Turning now to the question of whether it was necessary for the learned trial judge to warn himself of the dangers in relying on Allan’s evidence, I am of a firm view that it was not necessary because Allan’s evidence was corroborated by other independent evidence, as found by the learned trial judge.
30. As I stated earlier, the need for a primary judge to warn himself only becomes necessary when the only evidence the trial judge has to rely upon to make a finding of guilt is that of an accomplice and that it is uncorroborated. That is not the case here.
31. It is therefore appropriate to discuss the evidence against each of the appellants, including evidence of Allan. I will deal firstly with the evidence against Botchia because his alleged role in the alleged crimes was confined to the time when the victims were killed in the sea. A voir dire was conducted during the trial because Botchia claimed that some of his answers in his record of interview were not given voluntarily. The learned trial judge rejected Botchia’s claims and admitted the record of interview into evidence. His Honour accepted the evidence of the arresting officer and the corroborating police woman that Botchia gave the answers in his record of interview freely. More importantly, his Honour said Botchia did not make or lay any complaint either to the Police or his relatives that he was assaulted by police investigators. His Honour also said that the timing given by Botchia of the alleged assaults was well before the record of interview was conducted, thus even if they were true, they would have had no adverse effect on the record of interview, thus irrelevant. In any event, his Honour said the claims by Botchia were incredible and they could not be believed. In expressing this, his Honour said:
“A voir dire was conducted in respect of the record of interview of Botchia Agena. Proper notice has been given to challenge the admission of the record of interview. It was challenged on the basis that it was obtained unfairly as some of the answers were fabricated and also accused’s mind was overborne after being subjected to a very harsh treatment, swearing and intimidation...
In order to disprove the allegations as contained in the notice of voir dire, the State called the investigation officer, Ukies Kibala and his corroborator, one Esther Butinga. Ukies gave evidence on the investigations carried out in relation to the incident...And I say this: in the final analysis and on this aspect, I accept that there may have been some conduct by the policemen during the investigation prior to the date of the record of interview which may be treated unfairly (sic.). However, this was several weeks ago (sic.) and not at the time of the conduct of the record of interview. Moreover, the accused himself says (sic.) that he was not overborne by the actions of the policemen and that he took part in the record of interview out of his own free will”.
32. I cannot find any error in his Honour’s findings and his decision to admit Botchia’s record of interview into evidence. In fact, as a matter of law there was no need for a voir dire because Botchia denied being involved in the crimes. The learned trial judge therefore in my view was right in finding that voir dire was a desperate attempt by Botchia to disassociate himself from the alleged crimes.
33. It was clear that Botchia also failed to show that his answers in the record of interview were involuntary. Indeed as found by the learned trial judge, Botchia even agreed in his record of interview that he gave his answers out of his own free will and he signed the records of interview to show that all his answers were given freely.
34. There are answers in the record of interview, which might not be directly related to the alleged killings, but they have corroborative value especially when such evidence is compared to the evidence he gave at the trial. For example, in his records of interview he said he knew Gregory. He said Gregory was employed at Nonga Hospital and was living there. He said he knew Gregory because he used to drink beer with him. He also said, he knew the skipper for Palex, whose name was Isimel from West Coast, Namatanai, he used to operate Palex “to and fro”. He said he heard that Isimel died from “this incident”. He said on Saturday 29 September, 2007, when he went to Kokopo, he met Gregory there and Gregory bought some beer for him. He said, Gregory was there to send one of his brothers to Namatanai.
35. In Question 66 of the record of interview, when he was asked if the brother that Gregory brought was Richard, who on 26 September, 2007, was at Kokopo beach monitoring Palex’s movements, he said he did not know him (Richard). I find this to be a false denial.
36. Botchia’s answer to Question 65 of his record of interview supports Monica’s statement to the police as well as her evidence at the trial that Gregory was in Kokopo on Saturday 29 September, 2007 and was very drunk. Monica also said in the statement and her evidence at the trial that Gregory told her and others that he was at Kokopo to send Richard to Lihir. The evidence shows that Richard went to Namatanai, not to Lihir. I find this to be a false denial which in law amounts to corroboration of evidence against Botchia.
37. `The voir dire was quite plainly unnecessary and it was of no assistance to Botchia. In cross-examination Botchia also agreed that he was not overborne by the police during the record of interview and he agreed to sign the record of interview.
38. One Connie Oscar, the brother of Botchia who gave evidence for Botchia also did not lay any complaint either to the Police or to his relatives about any ill treatment of him and Botchia by the investigation officers.
39. It is also noted that Botchia’s statement in his record of interview that he knew Gregory and that Gregory was employed at Nonga Hospital and was living at Nonga were consistent with Gregory’s evidence. I therefore find that the statement made by Botchia in his record of interview was the truth and his subsequent evidence at the trial where he said he did not know Gregory was a false denial which as a matter of law corroborated Allan’s evidence that Botchia and Gregory knew each other well before the alleged killings on 26 September, 2007: John Jaminan v. The State (No.2) [1983] PNGLR 318 and The State v. Marianno Wani Simon (1987) N600.
40. The evidence of Allan about Gregory telling Botchia to take control of Palex and to take off immediately after the skipper and a crew of Palex had been shot dead, without Gregory asking Botchia whether he could drive and control Palex, again goes to confirm that Gregory and Botchia had known each other before the alleged killings and that Gregory knew that Botchia could control Palex. Thus Botchia’s answer in his record of interview that he operated a dinghy also corroborated Allan’s evidence.
41. All this evidence gives weight and credibility to Allan’s evidence that Botchia was at Makada Point, and that Gregory told him to get into their dinghy before other people or dinghies arrived. Furthermore, Botchia was holding an iron bar at that time and that Botchia took control of Palex after its skipper, crew and passengers were attacked and killed.
42. The reasonable inferences that could be drawn from such evidence were that, Bothia was waiting for Gregory and his men at Makada Point and that he (Botchia) was aware of Gregory’s plan to ambush and attack Palex and its passengers. In this regard, one has to remember that on 29 September, 2007, three days after the killings, Botchia and Gregory met at Kokopo and Gregory entertained him by buying him beer. This was another clear evidence of a close relationship between Gregory and Botchia.
43. The evidence from Allan was that, the iron bar he saw in Botchia’s hand at Madaka Point on 26 September, 2007 was the same one that was found and retrieved from Palex after Palex was located in the seas with the dead body of Anastasia Bolagas Maguri. Allan later identified the iron bar in court. There is logic in this story because Botchia was the one that drove Palex away after its passengers were killed, thus he would have left the iron bar in the boat.
44. It also follows that, Botchia made false denials at the trial that he did not know Gregory and Allan. There is a clear element of falsehood in Botchia’s evidence which in my view was made in a desperate attempt to disassociate himself from the crimes: The State v. Marianno Wani Simon (1987) N600. I find that Botchia made these false denials as result of his guilty conscience after coming to a full realization about the seriousness of his crimes and the possibility of incurring death penalty: The State v. Tauvaru Avaka (2000) N2024 and Woon v. R [1964] HCA 23; (1964) 109 CLR 529 at 541-542 per Windeyer J. The allegations made against him were very serious and if he was innocent of the crimes why did he not tell the police in his record of interview instead of refusing to answer questions put to him. That was his opportunity to clear his name, but he chose not to. Given the circumstances of the case, this point weighs against Botchia: The State v. Micky John Lausi (2001) N2091.
45. In my view, apart from the other evidence the iron bar connects Botchia directly to the killings.
46. I also find that there was more than enough time for Allan to see and observe Botchia at the scene of the alleged crimes. The killings took place during the day and the weather was good. There were discussions and plans amongst themselves including Botchia on how to block Palex when it arrived. It was not a fleeting glance as Allan had a full and clear view of Botchia and observed everything Botchia did for an estimated 30 minutes or so: John Beng v. The State [1977] PNGLR 115.
47. I have found that the learned trial judge had no need to warn himself before accepting Allan’s evidence because there were independent evidence which corroborated Allan’s evidence. The learned trial judge nonetheless considered it necessary to warn himself. That does not in any way affect his Honour’s ruling.
48. Thus, in the final analysis, I find no error in the learned trial judge finding Botchia guilty on all eight counts of wilful murder. I therefore dismiss Botchia’s appeal against his convictions.
49. In regard to Peter and Tobung, I also find that there was independent evidence which corroborated Allan’s evidence against them. The extent of their involvement in the alleged crimes started from the time the crimes were planned to the eventual execution of the crimes. Again Allan’s evidence connects them directly to the crimes. Allan gave a detailed account of how they both participated in the crimes, which the learned trial judge accepted to find them guilty on all eight counts of wilful murder.
50. In regard to Tobung, the answers he gave to all the questions put to him by the investigation officer in his record of interview confirm Allan’s evidence in every material particular. Tobung also told the Court that he was not able to hear everything that was said between Gregory and the other accomplices at the beach in the evening of 25 September, 2007, because he was sitting some distance away but he saw them, including Gregory put their hands together. At the end of the record of interview Tobung also agreed that he gave the answers out of his own free will and signed the record of interview. He also confirmed Allan’s evidence that he and Peter were from Pilapila village.
51. The investigating officer also told the Court that Tobung wanted to admit everything during his record of interview.
52. At the trial Tobung only gave evidence about policemen assaulting him at a Park sometime before his record of interview was conducted. However, I find that even if he was assaulted by the police the timing was too remote to the day the record of interview was done. I therefore have no doubt that he gave his answers to the questions put to him by the police during the record of interview freely.
53. Tobung called his father to support his evidence but the father’s evidence was limited to seeing a scar on Tobung’s head and a broken teeth. This was sometime after the police arrested Tobung. The learned trial judge said Tobung and his father had an interest in the outcome of the case and gave no weight to their evidence. His Honour said such evidence had no impact on the clear and unequivocal admissions made by Tobung in his record of interview.
54. The learned trial judge also said the evidence given by Tobung was personal and he gave evidence regarding his own role in the crimes and what he witnessed with his eyes. His Honour therefore fully accepted Tobung’s stories in the record of interview and held that answers in the record of interview were given freely.
55. I find no error in his Honour finding Tobung guilty on all eight counts of wilful murder. Thus I dismiss his appeal against his convictions.
56. In regard to Peter, in his answer to Question 29 of his record of interview, he agreed that he admitted the offences but said that he made those admissions because he feared the police. The record of interview was conducted on 27 November, 2007. During the record of interview he identified the gun produced to him as his. He said in July, 2007, he went to North Coast and left the gun with a person named Maras. He said he bought the gun from a man from Buka for K500 in May, 2007. Apart from these answers he denied having any knowledge about the alleged killings.
57. There is evidence from the arresting officer that during the investigations Peter wanted to show him the boats that were used to carry out the killings, so he drove Peter to Takubar beach at Peter’s direction but when they arrived at the beach, Peter changed his mind, so he (arresting officer) brought Peter back to the police station.
58. A person named Maras Varavaula (Maras) was called as a witness. He told the Court that Peter went and left the gun with him in October, 2007. This evidence contradicted the story Peter gave in his record of interview where he said he gave the gun to Maras in July, 2007. Maras said the gun was with him for about a month before the police went and got it. The arresting officer told the Court that he got the gun from Maras on 25 November, 2007. Maras told the Court that when Peter left the gun with him in October, 2007, Peter stayed with him for about two weeks. About a month later, the police went and got the gun.
59. Two conclusions can be drawn from Maras’ evidence. First, his timing of when Peter left the gun with him and when the police picked up the gun from him harmonizes with the date the crimes were committed, i.e 26 September, 2009. This is because going by Maras’ evidence, Peter would have stayed with him for up to about the second week of October,2007, may be a bit more, then about a month after Peter left Mara’s place, the police went and got the gun (on 25 November, 2007). This evidence seriously contradicted Peter’s evidence. Second, the effect of this evidence is that Peter was still in possession of the gun on the day of the killings viz; 26 September, 2009, thus corroborating Allan’s evidence.
60. At the trial, Peter elected to remain silent. The effect of which is that all the incriminating evidence against him remained unchallenged. Consequently, I find no error in the learned trial judge’s findings and I affirm the finding of guilt against Peter on all eight counts of wilful murder. The appeal against his convictions is therefore dismissed.
61. Allan’s evidence deserves to be given a special attention because it was pivotal and determinative to the findings of guilt against all the appellants of the offences charged. Allan’s evidence was pivotal because whether the Court could safely enter guilty findings against all the appellants hinged on his evidence. It is clear from the learned trial judge’s ruling that, evidence from both prosecution and defence, in their final analysis, pointed to the guilt of all the appellants and that they corroborated Allan’s evidence. As part of his findings, his Honour said Allan knew the appellants personally and gave detailed narrative of each appellant’s involvement in the crimes. He said the appellants lied in Court when they denied knowing Allan, he said such false denials together with the last ditch attempts to create false alibis by two of them corroborated Allan’s evidence. I find his Honour’s findings consistent with the evidence before him and I cannot find any error in them.
62. When one looks at Allan’s evidence it was very detailed and it covered the periods before, during and after the commission of the crimes.
63. I find that Allan’s evidence was strong, cogent and convincing therefore it was sufficient even on its own to convict the appellants as long as the learned trial judge warned himself: The State v. Francis Natuwohala Laumadava (supra) and The State v. Natanemo Wanu (supra). But when Allan’s evidence is considered with other evidence, there was even stronger basis for the Court to make findings of guilt against all the appellants. For example, Allan’s evidence regarding Gregory telling him and other appellants at the beach near Tavui No. 1 village in the evening of 25 September, 2007, that owners of Palex and their people broke his uncle’s leg and him removing Palex engine and taking it to his place because his uncle was not compensated, then owners of Palex going to his place with the police and taking Palex engine back from him; were all corroborated in every material-particular by other State witnesses. The evidence given by those State witnesses were not challenged by the defence. See for example evidence of Taunman Tito, Matuh Hosea and Monica Tolman.
64. There is one key aspect of Allan’s evidence which in my view further strengthens the view that Allan was a truthful witness. This evidence was not challenged by the defence, the evidence relates to his decision to surrender and reveal or confess the “incident” (killings). He said he thought about what happened in the “incident” and how he did not feel comfortable and could not eat and sleep properly after Palex was found with the dead body of Anastasia. He said he spoke to the Pastor at Bimun village and the Pastor told him to confess whatever was bothering him. He said he attended a week-long church rally at the nearby Lokon village and there were people praying for “exposal” (sic). It was following those experiences that he told the Pastor that the wanted to talk out about the “incident”. To me this was the turning point for Allan. I have no doubt that his decision to confess the killings came from a contrite heart resulting from his deep and profound religious conviction that he did a wrong thing by God. This view harmonizes with his evidence in re-examination that he feared God.
65. Allan was picked up by Namatanai police after he told the Pastor that he wanted to talk about the incident. He was asked in cross-examination whether he was told what to say or coached by the arresting officer, he denied this and said he gave his own story.
66. In this regard, the defence raised a point about Allan living with the arresting officer for a long period of time. The arresting officer denied that Allan ever lived with him but he was contradicted by Allan on this point. I do not think this had any serious adverse effect on Allan’s evidence. It is an accepted principle that people may for all sorts of reasons lie about certain issues but the credibility of their evidence would still not be affected at all: The State v. Marianno Wani Simon (supra). I think this was one such situation for the prosecution because when one looks at Allan’s evidence regarding the parts each appellant played in the crimes, they are so detailed that they clearly could not be the type of evidence someone who was coached could give.
67. From this analysis of Allan’s evidence, I affirm my view, that Allan was honest and a truthful witness and I find no error in the learned trial judge accepting and relying on his evidence as the primary and key source of evidence to make findings of guilt against all the appellants.
68. I agree with the learned trial judge that all the evidence pointed to the guilt of all the appellants. This view is further re-enforced by the fact that Gregory had a very strong motive to commit the crimes, namely his long held grudges against the owners of Palex and their people for breaking his uncle’s leg for which no compensation was paid. Gregory said he spent a lot of money taking his uncle first to Kavieng General Hospital then to Nonga Hospital for his uncle’s leg to be treated. When the owners of Palex did not compensate his uncle, he became very angry he demonstrated this by going and removing parts of Palex including the engine and taking them to his place. However, those things were taken back from him by Palex owners with the assistance of the police. One can imagine that this infuriating and even humiliating for Gregory. The extent of his fury and anger towards Palex owners was revealed very clearly in the evening of 25 September, 2007 at the beach when he told the appellants about his plan to kill the Palex owners and to “eat their shit”.
69. Allan on the other hand had no motive to lie about the appellants. His reason for deciding to reveal the incident, and later to give evidence against all the appellants in court, as I said was because of the deep and profound religious conviction he experienced during a week-long church rally at Lokon village during which, as he said a lot of people were praying (for “exposal” (sic.)). A Pastor he was talking to advised or counseled him to “surrender” and confess the thing that was bothering him. He said as a result, he confessed the “incident” because he “feared God”. To me, the religious experience Allan had was genuine and it was the underlying reason and strong motivating factor which compelled him to confess the killings and give evidence against the appellants.
Sentences
70. The punishment imposed on the appellants was the prescribed maximum penalty of death after the learned trial judge found that the crimes for which the appellants were convicted were the worst type. The learned trial judge relied on a number of Supreme Court decisions in imposing the maximum penalty on the appellants. One of the cases was Ure Hane v. The State [1984] PNGLR 105, in which the Supreme Court set out some sentencing guidelines for a court to consider when deciding whether a wilful murder is a worse type and whether it is a fit case to attract the maximum penalty. In that case, Bredmeyer J, who was the president of the court, listed eight types of wilful murder which he said may constitute a worse type of wilful murder that may attract the maximum penalty:
i. A wilful murder done in the course of committing a theft, a robbery, a break and enter; or rape.
ii. A wilful murder of a policeman or a prison warder acting in the execution of his duty.
iii. A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting
or assisting in an escape from lawful custody.
iv. A wilful murder of a person in police or court custody.
v. A payback killing of a completely innocent man.
vi. Any second or third murder.
vii. Any murder where the offender has a long record of violence such that he is likely to commit such offences in future.
71. This of course was not an exhaustive list of wilful murder cases which may attract the maximum penalty.
72. The learned trial judge also referred to Manu Kovi v. The State (2005) SC789, in that case the Supreme Court set out sentencing guidelines for wilful murder. The Court in that case said a worse type of wilful murder that may attract death penalty would fall into category four either in a plea or a trial where there were special aggravating factors, with any extenuating circumstances or mitigating factors being rendered completely insignificant or irrelevant by the gravity of the offence committed.
73. His Honour noted that in this case the killings were accompanied by robbery with extreme violence, during which all the cargo belonging to Palex owners and its passengers were stolen by the appellants. The robbery was also committed with the use of very dangerous and lethal weapons.
74. When deciding the appropriate penalties for the appellants, his Honour took into account victim-impact statements, statements made by each appellant in their respective allocutus, statements from community and church leaders, the appellants’ pre-sentence reports and statements from the relatives of the appellants.
75. His Honour also took into account the antecedents of the appellants, the extenuating and mitigating circumstances and factors together with the aggravating factors.
76. I am satisfied that the learned trial judge fully addressed the extenuating circumstances, mitigating factors and the antecedents of each of the appellants as well as the aggravating factors, noting that a failure to address these issues may amount to an error of law: Steven Loke Ume v. The State (2006) SC836.
77. The learned trial judge also noted that none of the appellants expressed any remorse at all. He said they continued to protest their innocence even after they were found guilty.
78. His Honour found that all the appellants participated equally in the crimes and no distinction could be drawn between them regarding their criminal culpability and blameworthiness. His Honour’s comments regarding Botchia is relevant in this regard because his involvement in the crimes was only on 26 September, 2007, in the sea when the victims were killed but was given the same penalty of death. His Honour said:
“I noted that you were not physically with the others on the night of the 25 September, 2007. However, the fact remains that the next day, you were with the others at Makada point and accompanied them to commit the crimes. You were also an active participant in the actual commission of the crimes.”
79. His Honour found that the “sheer gravity, ferocity and brutality” of the killings rendered the extenuating circumstances and mitigating factors “meaningless”. He said the fact that eight people were killed in this one incident made the whole case a worst type. Notably, his Honour was stating an established principle which is relevant to attract the maximum penalty: Steven Loke Ume v. The State (supra) and John Elipa Kalabus v. The State [1988] PNGLR 193. Each case of course has to be decided on its own merits.
80. His Honour said, none of the appellants, including Botchia was an innocent by-stander. None of them played a lesser role and each of them was a principal offender. In support of this proposition his Honour cited a passage from the decision of the Supreme Court in Gimble v. The State [1988-89] 271, where the Supreme Court at 273 said.
“...The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated”.
81. His Honour noted that this was a worst type of wilful murder because there were multiple victims and the killings were done with the use of speed boats and mobile phones. Thus there was high degree of sophistication in the planning and execution of the crimes. He described the killings as “senseless killing of innocent people.” His Honour noted that apart from the intentional multiple killings there was pre-meditation and detailed planning of the crimes which were deliberately committed in the high seas so that the victims could not escape the slaughter. He noted that the victims were innocent, unarmed and defenceless and that women, children and elderly people were among the victims, who did not have decent burials and their relatives were deprived of seeing their bodies. His Honour said the appellants had no regard for the sanctity of human life.
82. His Honour said the cruelty exhibited by the appellants when carrying out the killings was so grave and reprehensible that the only fair punishment for each of them was the prescribed maximum penalty of death.
83. His Honour when making above observations relied heavily on the decision in Steven Loke Ume v. The State (supra).
84. The grounds upon which the appeals may be allowed are well settled in this jurisdiction. The pertinent issue is whether the sentences of death were the appropriate punishments the court could impose and whether the learned trial judge’s exercise of sentencing discretion was proper: Public Prosecutor v. Tardew [1986] PNGLR 91; SC 314. An appeal may be allowed under the following two broad principles. First, whether the trial judge committed any identifiable errors viz; whether he acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect his decision, or mistook facts or overlooked material considerations. Second, whether although there were no identifiable errors, the decision reached was so unreasonable or was plainly unjust on the facts that the appellate court could properly infer that the trial judge had in some way failed to properly exercise his discretion and a substantive error had occurred: Les Curlewis v. David Yuapa (2013) SC1274; Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218; Air Marshall Mac Cormack and Anor v. Vance [2008] ACTA 16. All these cases essentially restated the principles enunciated in House v. King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, per Dickson J, and Evatt and McTernan JJ. These principles have been adopted by both the National Court and the Supreme Court in a long line of cases, such as William Norris v. The State [1979] PNGLR 605 and Public Prosecutor v. Tardew (supra) and Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205. See, also Cranssen v. R (1936) 56 CLR 509. These cases also demonstrate that an appellant Court does not have an unfettered jurisdiction viz; it cannot interfere with the exercise of discretion by a trial court unless it is shown clearly that the trial court had erred in law or fact. In exercising its discretion the trial court has to be guided by the facts and circumstances of the case and the relevant laws. The facts and circumstances should be considered holistically, not in piece meal.
85. I find that the parts of his Honour’s ruling which appear to have guided him in exercising his sentencing discretion apposite to these principles. They appear at pp. 523-525 of the Appeal Book. There his Honour said:
“This is the worst case of wilful murder. In fact, I think this is the first time in this country where the Court is dealing with a case where multiple number of persons have been wilfully murdered in a single act or series of acts. This was a senseless killings (sic.) of innocent persons.
In this case, what is most significant and what makes it a worse case of willful murder is not only that there were intentional multiple killings but importantly, the circumstances, of pre planning, organizing and eventual killing of the victims. This is in itself gruesome. The killings were done on the sea, where it was impossible to escape. This demonstrates the viciousness, brutality and the gravity of this case.
You took the lives of innocent and harmless unarmed men and women. You took away their lives prematurely. You had no legal or moral right to take the lives of these persons. Because of your actions, these people are now gone forever. Their loved ones will miss them forever. Some of them have not been decently buried, for their bodies have now become food for fish and other animals living in the sea.
Your case has troubled me since I convicted each of you. The sentences that I am about to pronounce on each of you has been a difficult one. What has been difficulties (sic.) is whether each of you should be sentenced to death or some other sentence such as life imprisonment or determinate number of years imprisonment.
Whilst I have seriously considered other sentencing options, such as life imprisonment or determinate terms of imprisonment, however, given the facts and circumstances of this case and the reasons I have given, I have come to the firm conclusion that the ultimate sentence provided by laws must be imposed upon each of you. I consider that the maximum sentence should be imposed upon each of you because this case involved premeditated, vicious and brutal killing in cold blood of not only one, but eight (8) innocent, defenceless persons with complete and blatant disregard for the sanctity of human lives for which there is really no lawful motive for taking away their lives.
Whilst each of you have (sic.) been convicted of eight (8) counts of willful murder each, I do not propose to impose a sentence on each count. Rather, as the crimes arose out of a single act or series of acts that one sentence should be imposed. I propose to impose a concurrent sentence.
I have had great difficulty in expressing the horror of what you did. This is an exceptional case calling for an exceptional sentence. I can do no better than to adopt and paraphrase what the Supreme Court said in the Ume case. In my considered opinion, each of your culpability is so grave that each of you deserves execution. In my view, whatever the extenuating and mitigating circumstances may be, the degree of moral an criminal culpability and the degree of cruelty exhibited by all of you is so grave and reprehensible that each of you is undeserving of a chance to live your own lives, and instead, it is only just and fair that each of you should pay for the crimes with your own lives. Your banishment from the community is the only just and appropriate punishment for your crimes in all the circumstances.”
86. I respectfully consider the above observations as a fitting description of the very serious and grave nature of the offences committed by the appellants. Indeed the case contains all the features of the worst types of wilful murders and in my view the facts of the case take it even beyond the types of worst wilful murders proposed in both Ure Hane v. The State (supra) and Manu Kovi v. The State (supra). The killings in this case were carried out with absolute callousness and incomprehensible degree of violence and brutality. There was total and cruel disregard for human dignity and sanctity of life.
87. The appellants clearly acted in concert when committing the crimes. They aided and abetted each other one way or another to commit the crimes. Thus they were caught by ss. 7 and 8 of the Criminal Code and were all principal offenders. Given that their convictions were for wilful murder, intention to kill was not an issue. Under s. 299 (2) of the Criminal Code, death penalty is not mandatory because of the use of the words – “liable to be sentenced to death” in the sub-section: Steven Loke Ume v. The State (supra), thus the Court had the discretion under s. 19 of the Criminal Code to impose lesser penalties. The learned trial judge however was of the view that a penalty less than death would not fit their crimes.
88. There is no doubt that the wilful murders were of the worst type. But given that offenders were several, the question can still be raised whether the appellants should have been given the same penalty? In other words, did the learned trial judge exercise his discretion properly when sentencing all of them to death?
89. His Honour was required to carefully weigh and determine the criminal culpability and the degree of blameworthiness of each appellant regarding the crimes. These issues had to be determined against the level or degree of their involvement in the crimes. The relevant sentencing principle is that if any of the appellants played a lesser role in the crimes then naturally they deserved lesser penalties: The State v. Morobet Awui Koma [1987] PNGLR 264; The State v. Upano Manake (No.2) (2006) N3504 and The State v. Clarence Tema Mongi (2007) N3259.
90. This exercise requires a closer look at the roles each appellant played in the crimes. Firstly, in regard to Botchia, he was at Makada Point he joined the rest when they arrived there. He later took control of Palex at the direction of Gregory after the skipper of Palex and a passenger who tried to take control of Palex in an attempt to escape, were both shot dead at point blank by Alex. Before that Botchia willingly boarded one of the two dinghies Gregory and other appellants brought, he knew why he was boarding it, viz; to help others hold up Palex and its passengers. He first saw Alex shoot Palex’s skipper and one of its passengers or crew at point blank as soon as Palex arrived without a word or warning. So by the time he took control of Palex he was fully aware that they were going to kill the other passengers. This is plain from Gregory’s actions viz; firing a warning shot followed by attacking Palex passengers with a bush knife. According to Allan, four men and two women were still alive when Botchia took control of Palex, and he saw Gregory attack them with a bush knife. The rest of the passengers were later killed after Botchia took over Palex, he no doubt saw those killings. Palex was later found with the dead body of Anastasia. It is without doubt that in regard to the subsequent killings, Botchia’s criminal culpability was no less than that of Gregory. I therefore find no error in the exercise of sentencing discretion by the trial judge to sentence him to death.
91. In regard to Peter, there is no question that he played a major role in these crimes viz; he took active part in planning and preparation of the crimes. He was part of the group that agreed in the evening of 25 September, 2007, to kill Palex owners the following day. He provided his own gun to be used in the execution of the crimes, then on the following day on 26 September, 2007, he willingly went to Makada Point and took part in the robbery of the goods belonging to Palex owners and its passengers and the brutal killings of the passengers of Palex. Evidence against Peter is overwhelming. Thus I also find that his criminal culpability warranted the maximum penalty. In the result I find no error in the exercise of the sentencing discretion by the trial judge.
92. As to Tobung, he made full admissions in his record of interview which was admitted in evidence by the Court. According to his record of interview, he was with others at the Tavui No.1 beach on the night of 25 September, 2007. He saw the preparations vz; the delivery of two dinghies and guns to the beach, he also witnessed the discussions that took place at the beach among other accomplices to kill Palex owners the following day. He then slept there and on the following morning, he willingly accompanied the others to Makada Point where robbery and killings took place. He saw the skipper and a crew of Palex being shot at point blank by Alex and other passengers being attacked by Gregory with a bush knife. He then joined the others to rob Palex. In the circumstances, I see no error in the exercise of the sentencing discretion by the trial judge in imposing the maximum penalty.
93. For the foregoing reasons, I affirm the sentences of death imposed on each of the appellants and I dismiss their respective appeals.
95. MOGISH, J: I have had the benefit of reading the judgment of Gavara-Nanu J and I respectfully concur with His Honour’s reasoning and conclusions. I would dismiss the appeals against convictions and sentences.
96. HARTSHORN J: These are decisions on three appeals against conviction. The appeals of the three appellants against sentence will be considered in separate decisions, if necessary.
Background
97. The three appellants and their two convicted co-accused (perpetrators) were each convicted of wilful murder after a trial and sentenced to death. It was alleged that on the afternoon of 26th September 2007, the perpetrators in two separate dinghys, armed with firearms, bush knives and a piece of iron, held up a third dinghy travelling by sea from Kokopo to Namatanai. The operator of the third dinghy and a passenger, were shot and died instantly. The perpetrators then boarded the third dinghy and stole all of the personal belongings. The remaining six passengers on the third dinghy were subsequently murdered.
Botchia Hagena
98. The appellant Botchia Hagena appeals against his conviction on four grounds which in essence are that:
a) The primary judge relied solely upon the evidence of Allan David an accomplice (Accomplice). This evidence was not corroborated and the credibility of the Accomplice was tainted;
b) There was evidence of impropriety by the police during the investigation, including in the arrest and interrogation of Hagena and during the conduct of his record of interview. Further, the Accomplice had lived with Constable Ukies Kibale the arresting officer (Arresting Officer) for about three years since the commencement of the police investigation into the crimes;
c) The primary judge fell into error in not warning himself of the dangers of relying solely on the evidence of an accomplice and on the need for caution before relying upon identification evidence;
d) Hagena did not have any motive to murder the deceased.
Accomplice evidence
99. The State submits that the primary judge properly addressed the issue of the use of accomplice evidence. At p 462 Appeal Book, the primary judge said as to the law relating to the evidence of accomplices:
“The law in this country is that an accused person may be convicted on the evidence of the accomplice alone. However, it would be dangerous to do so. see The State v. Titera Fineko [1978] PNGLR 262. Therefore, the trial judge ought to caution or remind himself of this danger in relying on the accomplices evidence. The State v. Amoko Amoka [1981] PNGLR 373. I remind myself of this principle, in particular given the circumstances of this case, and in particular because of the evidence given by two accomplishes (sic)”
100. The primary judge referred to the Accomplice as an eyewitness, that he actively took part in the commission of the crimes, that he was an accomplice and that he gave detailed evidence of Hagena. The Accomplice’s evidence against Hagena was that Hagena armed himself with a flat piece of iron at Makada Point, that he did not see him use it on anyone, that this was the first time that he had seen Hagena and that he remembered his name because Gregory Kiapkot called his name at Makada Point. The Accomplice also pointed out Hagena as the last person of one of the five accused sitting in court.
101. The State also submits that although Hagena denied committing the crimes, some of his answers in his record of interview are consistent with the evidence of the Accomplice. From a perusal of the evidence however, the only evidence in the record of interview of Hagena that is consistent in my view, is that he knew Gregory Kiapkot. He admits that he met Kiapkot and that Kiapkot bought him some beer, but that is on Saturday 29th September 2007, three days after the murders occurred. There is no evidence that corroborates that Hagena was involved in any planning or was at the scene of the murders.There is no evidence of anyone else against Hagena. I am satisfied that the evidence of the Accomplice against Hagena is not corroborated apart from Hagena knowing Kiapkot
102. As to the law relating to the evidence of accomplices, I refer to the two Supreme Court cases of Abraham Saka v. The State (2003) SC719, (Injia DCJ (as he then was), Jalina and Gavara Nanu JJ) and Private Nebare Dege v. The State (2009) SC1308 (Injia CJ, Mogish and David JJ).
103. In Abraham Saka (supra) the Court said:
“It is well settled in this jurisdiction that it is dangerous to convict on an uncorroborated evidence of an accomplice. Where evidence of an accomplice is involved, the trial judge should take heed of such danger and warn himself. See The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – Amoko [1981] PNGLR 373. This was reaffirmed not so long ago in The State –v- Francis Laumadava [1994] PNGLR 291 by Injia J (as he then was) who said at p. 299:
“I must warn myself as to the dangers of accepting Mr Kilileu’s evidence in these circumstances. There is a likelihood that one accomplice may fabricate or concoct evidence against another accomplice, either to get even or to seek to exonerate himself by casting the entire blame on the other person. It is an established rule of practice that I must warn myself that it is dangerous to convict unless the accomplice’s evidence is corroborated by other witnesses”.
We, with respect, endorse His Honour’s views in Laumadava’s case as a correct statement on the law relating to evidence of accomplices.”
103. In Private Dege (supra), the Court said at [55]:
“The law on accomplice evidence is well settled in this jurisdiction. Whilst evidence of one accomplice is not evidence against another accomplice, the Court may nonetheless, after warning itself, accept such evidence if the evidence of one accomplice against another accomplice is corroborated by the accused himself by way of admissions or by evidence of some other witnesses: see The State v. Amoko Amoko [1981] PNGLR 373; Keko Aparo & Others v The State SC 249 (25TH May, 1983); Abraham Saka v The State SC 719. The State v. Joseph Tapa [1978] PNGLR 134.”
104. In Private Dege (supra), it appears that the Supreme Court has adopted a more restrictive test by saying that after warning itself, a court may accept accomplice evidence if that evidence is corroborated.
105. In any event, it is clear that a Court should warn itself of the danger of convicting on the uncorroborated evidence of an accomplice. It is dangerous because of amongst others, the considerations referred to in Francis Laumadava (supra) by Injia J (as he then was). It is also dangerous for the reasons referred to by Kandakasi J in The State v. Ben Noel (2002) N2253.
106. In that case His Honour rejected the evidence of a witness who had been charged with the same offence as the accused, but then against whom the State decided not to proceed, in exchange for him giving evidence against the accused. His Honour formed the view that the witness was obliged to testify against the accused in exchange for his freedom. Although His Honour sought to distinguish the witness’s case from that of an accomplice where a caution is required before the evidence is accepted, in my view, the point raised, that an accomplice may give evidence against another in exchange for his freedom, and therefore his evidence may very well be tainted because of a desire to ensure his freedom or not to be charged, is a particular danger of which a court should be aware before accepting uncorroborated accomplice evidence.
Consideration
107. In this instance from a perusal of the transcript, the evidence of the Accomplice can legitimately be adversely questioned for the following reasons:
a) the Accomplice states that he was slapped and locked up by the police, and a member of the police pointed a pistol to his head,
threatened to shoot him and throw him off a bridge to crocodiles on the beach below. Soon afterwards the Accomplice gave his statement
to the police. Hagena submits that the Accomplice gave his statement out of fear for his life;
b) during cross-examination, the Accomplice admitted that from 2007 to late 2009 he was living with the Arresting Officer under his roof at Kurakakaul. This raises the possibility of the Arresting Officer coaching and attempting to ensure that the Accomplice kept to his initial statement. It also raises the question as to whether the Accomplice gave his version of events in consultation with the Arresting Officer to ensure that he was not charged at a later date for these crimes. Further the Arresting Officer denied that the Accomplice had lived with him. This raises the question as to why the Accomplice would lie about this fact. That the evidence of the Arresting Officer and the Accomplice contradict each other on this fact raises either doubts about the integrity of the police investigation including the truthfulness and the conduct of the Arresting Officer, or the veracity of the evidence of the Accomplice. Either way, it affects the integrity of evidence of the Accomplice;
c) the Accomplice said that he did not know Hagena before and only knew his name when Gregory Kiapkot called him by the name “Botchia” at Makada Point. Hagena submits that the Accomplice had limited time to identify him then as the circumstances under which the identification was made were rushed with the robbery and shootings happening quickly. His later identification of Hagena can also be questioned on the basis that it was in court when Hagena was sitting with the other accused. The Accomplice said that he knew all of the other accused. It was therefore easy for him to identify Hagena by virtue of him being the accused that he did not know, and not because he recognized him as the person he allegedly saw at Makada Point;
108. In my respectful view the primary judge did not adequately consider and deal with the above concerns before deciding to convict
Hagena on the uncorroborated evidence of the Accomplice. Given the above, I am of the view that for the primary judge to have accepted
the uncorroborated evidence of the Accomplice in the circumstances referred to above, notwithstanding that he reminded himself of
the principle that it would be dangerous to do so, was an incorrect exercise of his discretion.
109. I am satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict
of guilty made against Hagena: John Beng v. The State [1977] PNGLR 115. As the evidence is incapable of proving the guilt of Hagena beyond reasonable doubt, a verdict of acquittal must be substituted.
Peter Taul
110. The appellant Peter Taul appeals his conviction on the grounds that the primary judge erred in admitting the record of Taul’s interview into evidence when there was evidence of assault leading up to the conduct of the interview, and secondly that the primary judge erred in law in convicting Taul of the murders of six of the deceased.
111. I mention that Taul was permitted to amend his Notice of Appeal so that amongst others, it reads, “The primary Judge erred in law when convicting him of the murder of 6 others .....”. Nowhere in the Notice of Appeal does Taul appeal his conviction for the murder of the other 2 deceased. I will assume that this is a mistake and that Taul appeals his conviction for the murder of all 8 of the deceased.
Consideration
112. In regard to the admission of the record of interview into evidence, from a perusal of the transcript of evidence, it is clear
that no objection was taken by counsel for Taul to his record of interview being admitted into evidence notwithstanding that his
counsel was specifically asked whether he had any objections. The primary judge was entitled to admit the record of interview into
evidence in such circumstances.
113. In regard to Taul’s conviction, Taul did not give evidence at the National Court trial. In his record of interview, when
asked why on Sunday 18th November 2007 about the incident, he admitted everything and now denies everything, he answered that he was afraid of the police
therefore he ‘admitted’. His record of interview was stated to have occurred on 17th November 2007. That is incorrect as 17th November 2007 did not fall on a Tuesday. The pidgin translation of the record of interview states that it occurred on Tuesday 27th November 2007. This is confirmed by the Arresting Officer. However, the Arresting Officer also gives evidence that Taul never admitted
to the allegation in his record of interview.
114. Given that, as mentioned, there are grounds for considerable doubt to be raised as to the truth of the evidence of the Arresting Officer, his conduct, and the integrity of the police investigation, that he gives evidence that Taul never made an admission when the record of interview states that he had, again raises doubts as to the veracity of the Arresting Officer’s evidence and calls into question the integrity of the record of interview.
115. The State submits that the only evidence against Taul was from the Accomplice. I have already formed the view that the Accomplice’s uncorroborated evidence should not have been accepted by the primary judge. Notwithstanding the State submission that this was the only evidence, there is also evidence from one of Taul’s co-accused, Tobung Paraide, against him. As to this evidence, as the Supreme Court said in Taita Prichard v. State (2016) SC1541 at [47]:
“47. Even if such evidence had been given in admissible form at trial, the trial judge would have needed to warn himself that such evidence should not be used against a co-accused unless corroborated – See Peacock v The King [1911] HCA 66; [1911] 17 Argus LR 566. There would have been no obligation on the appellant, even if Paru had given sworn evidence to the same effect at the trial, to offer contrary testimony.”
116. I also refer to my earlier comments concerning accomplice evidence in this regard.
117. As has been referred to, the primary judge reminded himself that it is dangerous to convict on the evidence of an accomplice alone. In this instance however, there is no reliable evidence that is able to corroborate the evidence of the co-accused Paraide, against Taul. Further, given the significant doubt as to the veracity of the Arresting Officer’s evidence, his conduct and the integrity of the police investigation, I am of the view that notwithstanding the warning that he gave himself, the primary judge erred in using the evidence of the co-accused Paraide, against Taul.
118. Consequently, I am satisfied that there is in all of the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict of guilty made against Taul. As the evidence is incapable of proving his guilt beyond reasonable doubt, a verdict of acquittal must be substituted.
Tobung Paraide
119. The appellant Tobung Paraide appeals his conviction on the grounds in essence that the primary judge erred in relying upon the evidence of the Accomplice, and in admitting and relying upon the admissions of Paraide when the court had found that some improper conduct of the Police had occurred prior to the admissions made by Paraide in his record of interview.
Consideration
120. In regard to the reliance upon the Accomplice evidence, for the reasons referred to earlier, I agree that the primary judge erred in relying upon that evidence. This is not determinative of Paraide’s appeal against conviction however. Paraide also made admissions in his record of interview. It is submitted that the primary judge should not have admitted and relied upon this evidence because of Police impropriety.
121. When the transcript is considered, counsel for Paraide did not object to Paraide’s record of interview being admitted into evidence and did not object when counsel for the State informed the court that the record of interview was tendered by consent. Further, when Paraide gave evidence in the National Court, although he gave evidence of alleged injuries he suffered, he did not take the opportunity to give any evidence to the effect that what he had said in his record of interview was not true and was not correct.
122. I am not satisfied that it has been shown that the primary judge erred in finding Paraide guilty notwithstanding that he relied upon the evidence of the Accomplice as well as Paraide’s own evidence.
123. To any extent that the points raised by Paraide concerning impropriety by the Police and the use of the Accomplice’s evidence, might have been decided in Paraide’s favour, then pursuant to s. 23(2) Supreme Court Act, I am satisfied that no miscarriage of justice has actually occurred. Paraide’s appeal against his conviction should be dismissed.
Orders
124. Given the above, I would make the following orders:
a) The appeals against conviction of Botchia Hagena and Peter Taul are upheld;
Appeal against sentence by Tobung Paraide
128. This is a decision on an appeal against the imposition of the sentence of death.
Background
129. The appellant and four others (perpetrators) were each convicted of wilful murder after a trial and sentenced to death. It was alleged that on the afternoon of 26th September 2007, the perpetrators in two separate dinghys, armed with firearms, bush knives and a piece of iron, held up a third dinghy travelling by sea from Kokopo to Namatanai. The operator of the third dinghy and a passenger, were shot and died instantly. The perpetrators then boarded the third dinghy and stole all of the personal belongings. The remaining six passengers on the third dinghy were subsequently murdered.
130. An appeal against sentence is governed by s. 22(d) and s. 23(4) Supreme Court Act. The legal principles on an appeal against sentence are well settled in this jurisdiction and were reiterated in the Supreme Court case of Ben Wafia v. The State (2006) SC 851;
“A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605.”
131. The appellant submits that the trial judge erred in the exercise of his discretion as he failed to take into account the appellant’s degree of participation for each of the eight counts of wilful murder. It is submitted that the evidence was that the six passengers who were subsequently murdered, were alive when the appellant left the scene and so he could not have participated in their murder.
132. The State submits that the trial judge did not fall into error in the exercise of his discretion as he went to great lengths in his consideration of whether the maximum sentence of death was warranted. The trial judge carefully considered the circumstances of the murders, took into account aggravating and mitigating circumstances and made reference to relevant case authority, the State submitted.
Consideration
133. At [90] of his sentencing decision, after commenting that none of the perpetrators were bystanders and that they each actively took part in the commission of the crimes, the trial judge states that he considered carefully the roles that each of the perpetrators played and that the evidence shows that each of them actively participated from the beginning to the end. Earlier, at [76], the trial judge states that the appellant took an active role in the commission of the crimes and that the appellant was with Gregory Kiapkot and others on (the) evening of 25th September when all of them planned and gathered the tools and guns to commit the crimes the following day.
134. The trial judge at [90] reproduces the oft-quoted statement from Gimble v. The State [1988-89] PNGLR 271 that is to the effect that all active participants in a crime should be sentenced on the same basis. This statement was reproduced and quoted with approval by four of the five members of the Supreme Court in Alois Erebebe v. State (2013) SC1228. I was one of those four members. In that case an appeal by the State was allowed and amongst others, sentences of life imprisonment that had been imposed in respect of four wilful murders were increased to sentences of death.
135. In Erebebe (supra) at [56], after reproducing the statement from Gimble (supra), the majority stated that they were satisfied that the absence of a finding as to the prisoners’ direct involvement did not preclude the trial judge from imposing the death penalty. Similarly in this instance I am satisfied that the trial judge was entitled to impose the death penalty on the appellant notwithstanding that the appellant may not have had direct involvement in the murder of the said six passengers. The appellant was found by the trial judge to have played an active role in the commission of the crimes and was amongst others, present at the planning stage.
136. I note further that even if the murders of the said six passengers are not considered, it is clear from the appellant’s record of interview that he was present when the other two persons were murdered. The killing of two or more persons in the single act or series of acts is one of the types of cases in which it may be considered appropriate for the death penalty to be imposed: Steven Ume v. The State (2006) SC836.
137. For the above reasons, I am not of the view that it has been established that the trial judge fell into error when he imposed the death penalty upon the appellant. Further, I am not of the opinion that this is a case in which s.23(4) Supreme Court Act should be invoked. This appeal against sentence should be dismissed.
138. KANGWIA J; The appellants appeal against their conviction and sentence on eight counts each for the wilful murder of eight persons.
139. It was alleged that the appellants and others in two dinghies held up another dinghy named Palex which was transporting 8 people towards the West Coast of Namatanai. The operator and the crew of the boat were shot and killed instantly. The remaining six passengers were murdered after their cargo was looted.
140. After a trial in the National Court they were all convicted and sentenced to Death. They now appeal against the convictions and sentences.
141. The appeal against conviction will be considered first followed by the appeal against sentence.
142. The law on appeal against conviction is as stated in the case of William Norris v The State [1979] PNGLR 605; SC 171 where the Supreme Court said;
“On an appeal against conviction pursuant to s 22 (1) (a) of the Supreme Courts Act of 1975the 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”.
143. The grounds of appeal by the appellants are considered separately for each appellant.
144. This appellant’s first second and third grounds of appeal alleged that the primary judge erred when he relied solely on the evidence of the sole accomplice whose credibility was in question considering the circumstances under which his evidence was obtained and presented in Court.
145. It was further alleged that the accomplice was assaulted and threatened and out of fear of police impropriety the accomplice manufactured evidence against the appellants and distanced himself from any participation. Therefore it was submitted that the conviction on such evidence was wrong and should be set aside.
146. The State countered that a voir dire was conducted as to the alleged police impropriety from which the Court ruled that if there was any unfair treatment it was some weeks before the record of interview (ROI hereon) hence his mind could not have been overborne by the police actions.
147. It was also argued that the primary judge did remind himself of the dangers in relying on the evidence of an accomplice as stated in the cases of The State v Titeva Fineko [1978] PGLR 262 and The State v Amoko Amoko [1981] PNGLR 373, hence the appeal against conviction should be dismissed.
148. The test on who is an accomplice is stated as “persons who participate in the actual crime charged, whether as principals or accessories before or after the fact.” See, The State v Nataemo Wanu [1977] PNGLR 152.
149. The law on accomplice evidence is that an accused may be convicted on the evidence of an accomplice. See, The State v Titeva Fineko (supra). However the trial judge must warn himself of the dangers in relying on the sole evidence of an accomplice. See, the State v Amoko Amoko (supra).
150. Numerous cases have also decided that on accomplice evidence the court must warn itself that it is dangerous to convict on the sole evidence of an accomplice unless the evidence is corroborated by other witnesses. See, The State v Francis Laumadava (supra) and Abraham Saka v The State (2003) SC 719.
151. In view of the law as it stands, my opinion is that there is still a discretion in a trial judge under the given circumstances of each case to accept or reject the evidence of an accomplice.
152. In response to the allegations by the appellant in this case a voir dire was conducted.
153. At the trial in cross examination Q & A 30 when it was put to the accomplice witness that he was belted up, hung over a bridge and threatened to be shot at the place of his arrest in Namatanai he denied such acts occurred. He later stated that the police did not assault him but just slapped him at the time of his arrest and placed in the cell.
154. It would therefore be safe to hold that the accomplice gave evidence without any assault or threats from the police. The allegations in the voir dire can be viewed as an allegation without any basis. It was open to the primary Judge to not warn himself of the dangers of relying on the evidence of the accomplice, that he gave the evidence while overborne by assaults and threats.
155. It was also alleged that there was police impropriety that caused the accomplice to give evidence that was untrue, concocted
and self-serving to isolate himself of blame and get the appellants convicted. The accomplice in his oral evidence did not raise
issues of police impropriety or deviate from his evidence in the ROI. The records also show that the accomplice voluntarily gave
sworn evidence at the trial.
156. The trial judge rejected the appellant’s allegations in the voir dire and said this in his decision;
“In the final analysis, and this aspect, I accept that there may have been some conduct by the policemen during the investigation, prior to the date of the ROI which may be treated as unfair. However this was several weeks ago and not at the time of the ROI. Moreover the accused himself says that he was not overborne by the actions of the police and that he took part in the ROI of his own free will”
157. In the material before me there is no evidence that this appellant said that he was not overborne by the actions of the police and that he took part in the ROI of his own free will. However the decision of the primary judge is obvious. He determined that the alleged unfair treatment occurred some weeks before the ROI and by the lapse of time he could not be overborne by improper police actions. I am of the view that the primary judge was quite entitled to rule accordingly under such circumstance and I find no error in that determination.
158. On the allegation of the accomplice living with the arresting officer for a long time it gave rise to coaching and the accomplice simply acceding to the Arresting officers beckoning to avoid a future charge. These are reasonable assumptions that surface. However the accomplice gave evidence that he voluntarily gave evidence because he felt uncomfortable with people praying for exposal and the urging of a pastor to surrender after recognizing that he had a problem.
159. The undisputed situation is that the accomplice in the ROI gave voluntary evidence as a witness. This was what the accomplice
said when asked whether he gave evidence to please the police and avoid being charged. His main evidence as a witness obtained corroboration
from the admissions of Tobung Paraide who gave evidence in his defence.
160. The primary judge in my view rejected the allegation that the accomplice was coached to say what he said because he lived a long
time with the arresting officer. It was open to the primary judge to make such determination in the circumstances before him. The
primary judge in my view did not commit any error in this respect.
161. The fourth ground alleged that the appellant had no motive against the victims and deceased and that he had no reason to commit the offences alleged and therefore it was unsafe to convict him. Motive in my view is not an element of wilful murder. It could have been raised at trial but the records do not show that this happened. It is far belated to raise the issue of motive on appeal. I decline to uphold this ground of appeal.
162. In the circumstances I am of the view that the guilt of the appellant was the only rational inference that the circumstances of the case would have enabled the Court to draw. The primary judge in my opinion did not err in convicting the appellant on the eight counts of wilful murder.
163. I would uphold all the convictions of this appellant.
164. According to the transcript this appellant elected to remain silent at trial.
165. His only ground of appeal was the same as the other two appellants; that the primary judge erred in admitting the ROI of the accomplice and convicted him when there was evidence that the statements therein were not made voluntarily.
166. I also adopt what was earlier stated in the appeal of Botcha Agena to this appeal.
167. The only evidence by this appellant were his denials of involvement and participation in the commission of the crime in his ROI. However in Q&A 29 of the ROI the appellant admitted making admissions earlier out of fear and not on his own free will. In Q & A 100 and 101 of the ROI the appellant admitted that he was not assaulted or forced to answer the questions put to him. He then endorsed it by signing the ROI.
168. In relation to the evidence of the accomplice the primary judge rejected a voir dire on allegations of police impropriety as the cause for the accused and the accomplice to make admissions in the respective ROI. This does not aid the appellant.
169. Given the appellant’s denials and lack of evidence of police impropriety against the accomplice, his ground of appeal has no basis.
170. Secondly, he was also implicated in the evidence of co-accused Tobung Paraide.
171. Accomplice Allan David gave evidence of the appellant going away with Gregory Kiapkot and Anton Marko and then returning to where they were. On their return the appellant was said to have operated a big boat and carried a single barreled shotgun. The gun was later identified at the trial as the one carried by the appellant during the travels to commit the offences. The accomplice gave further evidence of travelling with the appellant who operated the big boat during the commission of the offences. The appellant was also said to have a phone from which he was communicating.
172. This evidence of the accomplice was the same as the evidence of Tobung Paraide in his ROI.
173. There is no evidence that the two accomplices were coached or under duress by police threats or assault to give the same or similar evidence. Their ROI were conducted at different times.
174. Nowhere in the appeal book does it show that the appellant was overborne by the actions of police. I consider that the trial judge was entitled to the view that given the long time between the threats and the time of the ROI the appellant could not have been overborne by the actions of police. There was no error committed in the view taken by primary judge.
175. The appellants 2nd ground of appeal alleged that the primary judge erred in law when convicting him of the willful murder of six people. It was submitted that he had already left when the six others met their fate. He was not one of the people who remained after the first two were killed on the boat. Despite not knowing what happened to the other six passengers in the boat it was submitted that he was convicted in a blanket conviction with others.
176. The group including the appellant started off with drinks at Kokopo and the next day they continued out to sea and the killing was done. The appellant was in the group when two men were first shot and killed. He could also identify Anton Marko, Kenny Wesley, Tobung Paraide, and himself in a photograph.
177. In my view he was a party to the killings by association and participation and was caught by s 7 of the Criminal Code. The primary judge did not err in convicting him for the total number of people in the boat. This ground has no basis hence the conviction is upheld
178. This appellant’s grounds of appeal alleged that the primary judge erred in law and fact in finding him guilty after failing to consider the following factors;
179. The State countered that there were admissions heavily implicating him in his ROI which was tendered into evidence without objection.
180. Since the grounds of appeal are similar in nature to the grounds of appeal raised in the appeal by Botchia Hagena I adopt the reasoning in that case to this appeal.
181. The records show that most of the evidence of this appellant in the ROI were in many respects the same or similar to the evidence of accomplice Allan David. The appellant’s ROI was tendered into evidence by consent. The records show that his counsel did not object to the tender of the ROI when specifically asked.
182. Allan David and Tobung Paraide were now accomplices in the case. However their evidence in my view could not be taken as supporting each other. The evidence of Tobung Paraide was in my view capable of corroborating the evidence of Allan David. That view exists because in the trial it is obvious that Allan David gave evidence as a witness for the State. Tobung Paraide on the other hand gave his evidence in the ROI as an accused. He made admissions that implicated him in the ROI.
183. The appellant’s application for voire dire at the time of the trial was also rejected as belated.
184. He admitted in the record of interview that his answers to the questions in the ROI were given on his own will. He also signed the ROI to affirm that his statements in the ROI were made voluntarily.
185. The appellant chose to forgo the opportunity to rebut his admissions in the ROI. Under those circumstances it was in my view not necessary for the trial judge to rely on the evidence of the accomplice to enter a conviction against this appellant. The appellant’s admissions were sufficient for a conviction. In my view the trial judge made no error in convicting this appellant on his admissions.
186. I would uphold the conviction against this appellant.
187. Having said all that I am of the view that the convictions against the appellants were safe and should be upheld.
188. On the appeals against sentences I have also had the opportunity of reading the judgment of his Honour Gavara-Nanu J, and agree with his Honour’s reasons and conclusions.
189. PITPIT J: I have had the opportunity of reading the draft judgements by Justices Gavara-Nanu and Hartshorn in these appeals. And I do accept their honours’ views on the principle of laws relating to the evidence of accomplices, identification and admissibility of evidence etc. However, upon the application of these principles to the circumstances of each of these appeals, I am inclined to prefer the views of his Honour Justice Gavara-Nanu regarding the acceptance and admissibility of the evidence of the accomplice witness Allan David.
190. With respect to the appeals against convictions by the Appellants I would therefore order that;
191. With respect to the appeals by the Appellants against sentences imposed, I accept the views, findings and conclusions by his Honour Gavara-Nanu J, and therefore order that;
________________________________________________________________
Public Solicitor : Lawyers for the Appellants
Public Prosecutor : Lawyers for the Respondent
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