SC1839

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 46 OF 2017
BETWEEN:
GIBSON MARAEN
Appellant

AND:
THE STATE
Respondent

Waigani: 	Kirriwom, J, Anis, J & Liosi, J
2019: 27 June & 30 August

SUPREME COURT – Appeal – Against Conviction – Willful Murder – Trial judge’s exercise of judicial discretion – Defence of self defence and provocation – No credible evidence of self-defence – Single prosecution witness’ testimony reliable – No error shown in the exercise of judicial discretion – No miscarriage of justice demonstrated – Appeal dismissed.
Facts
Appellant attacked and killed the deceased by chopping him on his face and head repeatedly several times with an axe. He denied the charge and raised self-defence, Trial judge rejected self defence and found that the appellant had the necessary intention to kill the deceased considering the manner in which he carried out the brutal and unprovoked attack. 
In the appeal the appellant argued that the trial judge erred in not considering his defence of self defence and further erred in relying on the evidence of the sole prosecution witness who was related to the deceased.
Held, dismissing the appeal:
1.	That there was no error demonstrated to show that the trial judge wrongly exercised his discretion in rejecting the appellant’s defence of self defence.
2.	That the appellant failed to demonstrate that there was a miscarriage of justice in the way the trial judge determined the case.
3.	There is no rule of law that precludes close relatives becoming eye-witnesses in criminal cases involving victim of crime who is related to the witness. 

Cases Cited:
Papua New Guinea Cases
Chief Inspector Robert Kalasim v Tangane Koglwa [2006] SC828
Richard Harold Davies v Stanley Barker [1977] PNGLR 386 
Chief Collector of Taxes v Bougainville Copper Ltd [2007] SC853 
The State V John Beng [1977] PNGLR 115 
Birch v The State [1979] PNGLR 75
The State v Peter Karik (2011) N5149 
Philo Aufe v Richard Pii (2018) N7501
Pala v. Yop (2005) PNGNC 116 

Overseas Cases
House v R (1936) 55 CLR 499
Lovell v. Lovell (1950) 8 CLR 192 
Australian Coal and Shale Employees’ Federation v. The Commonwealth and Others (1953) 94 CLR 621
Evans v. Bartlam (1937) AC 473 

Counsel:

L. Jack, for the Respondent 
Appellant in person
DECISION
30th August, 2019
1.	KIRRIWOM, J:   This is an appeal by a prisoner in person who presented his own appeal before the court reading from a written submission prepared by another prison inmate with some legal background and understanding of law. The appellant was convicted on a charge of willful murder on 31 May 2017 after a trial and sentenced to life imprisonment on 10th August 2017.

Background facts 

2.	The brief facts are that on 10th December 2015 the appellant and the deceased in the company of few other people were drinking beer at 6 mile Port Moresby. Both the deceased and the appellant became heavily intoxicated and got into an argument that ended up in fist fight. The fight was stopped by others present and the two were separated and each went to his house. 

3.	Some hours later that same afternoon the deceased washed, changed and proceeded to nearby market and was chewing betelnut with some relatives when the appellant approached him armed with an axe and began to attack the deceased with it. The deceased retreated backwards trying to escape the blows from the axe but tripped and fell to the ground whereupon the appellant came over him and swung the axe with force on the face of the deceased cutting him three times and on the fourth blow the axe blade got stuck on the face of the deceased that the appellant left the axe imbedded in the face of the deceased and he fled from the scene. The deceased died at the scene and his body was later taken to Port Moresby General Hospital.

Notice of Appeal and Grounds of Appeal

4.	In his notice of appeal lodged on 28 August 2017, the appellant appealed against both his conviction and sentence of life imprisonment. At the hearing of his appeal, the appellant abandoned his appeal against sentence and only pursued the appeal against conviction.

5.	The appellant set out total of sixteen reasons for appealing which included complaints against severity of the sentence imposed. But with the abandonment of his appeal against severity of sentence, his only grounds of appeal against conviction were challenges to the trial judge’s evaluation of the evidence presented in which the trial judge believed the State witness version of the events and did not accept the appellant’s story of acting in self-defence. He contended that he did not intend to kill the deceased, he acted to defend himself.

6.	He further alleged that the State key witness who was the deceased’s sister was never at the scene of the crime, did not see what happened, and as such her evidence ought not to have been believed, she gave perjured evidence. Therefore, the verdict of the court was unsafe and unsatisfactory.

Issues

7.	The issues in this appeal are:

a.	Whether the trial judge erred in his analysis and evaluation of the evidence before the court?
b.	Whether the trial judge erred in rejecting the self-defence argument by the appellant?
c.	Was there a miscarriage of justice in this trial?

Analysis and evaluation of evidence – Exercise of Discretion

8.	Has the trial judge made an error in his evaluation and analysis of the evidence before the Court? This issue addresses the appellant’s contention in his ground of appeal that the State’s key witness Joyce Kuno was never at the scene of the crime and did not even see the events she testified about. In other words, the appellant is contending that the witness had deliberately given false testimony and therefore lied to this court, thereby perjured herself, when she was not an eye-witness at all.

9.	I find this submission to be quite baseless. There was no suggestion to the witness Joyce Kuno during her testimony in the trial that she was never at the scene and did not even witness or see the incident with her own eyes. I have perused the entire evidence of Joyce Kuno contained in the transcript from Appeal Book pages 100 – 121 covering examination in chief, cross-examination and re-examination and at no time was the witness challenged on the truth or reliability of her evidence on the basis that she fabricated her story from other people’s account of events. In practice, this should be identified in the cross-examination of the witness where the defence counsel puts the client’s instructions to the prosecution witness. 

10.	The absence of this being put to the witness Joyce Kuno can only mean one thing that the appellant never instructed his lawyer of this story that he is now raising on this appeal. This challenge to the witness Joyce Kuno appears to be a recent invention because if there was any truth in this story, Joyce Kuno should have been challenged at the trial and given the opportunity to respond to this accusation.

11.	The law is already well settled in this jurisdiction that if a party has not raised a question of fact or law in the lower court and not allowed proper and full discussion on it by all parties at that level, you cannot raise it as a new matter on appeal: Chief Inspector Robert Kalasim v Tangane Koglwa [2006] SC828. The Supreme Court (Kapi CJ, Injia DCJ and Hinchliffe, J) said:

“Mr Kua submits that the Supreme Court in an appropriate case, whether on an application for leave to appeal or on a notice of appeal, if an appellant/applicant relies on a ground that was not taken or raised in the court below, and the ground cannot be allowed to be taken on appeal, the Court should rule the particular ground incompetent on a notice of objection to competency. If that is the only ground relied upon, the application or the appeal should be dismissed on an objection to competence. He submits that such an application or appeal should be dismissed on a competency argument because it would save parties from incurring unnecessary costs in pursuing the appeal and only to find at the hearing of the appeal that the appellant/applicant could not raise the issue as incompetent for not raising it in the court below.

This proposition appears to us to be a common sense approach in appropriate cases. This proposition may apply in a limited number of circumstances. Let us illustrate. First, in a trial, a document may be admitted in evidence without any objection by the other party. If the other party subsequently questions the admissibility of the document on an appeal, he would have very little chance of succeeding on appeal. The reason is that if this issue was raised at the trial, the other party would have had the opportunity to address the issue of admissibility. It is unfair to raise this issue on appeal because the party relying on the document was not given an opportunity to address the issue at the trial.

Where a question of law is not raised in the trial and the facts do not give rise to the question of law, a party may not raise such a point of law on appeal. The reason is that such a point of law is irrelevant.”

12.	Therefore, the appellant’s challenge to the evidence of Joyce Kuno on the basis that she was lying to the court in her evidence in that she was not at the scene of the crime in this appeal is without merits as it is being raised for the first time. This was not put to Joyce Kuno, who I note is no stranger to the appellant because they all know each other and they come from the same area of Laiagam in Enga Province and at the material time when this crime was committed, they were next door neighbors. She was not given the opportunity to defend her story and she cannot be ambushed now.

13.	While on Joyce Kuno’s evidence, her credibility as witness in the trial was also challenged on appeal on the basis of bias in that she was the blood sister of the deceased Wari Kuno. The appellant argued that because of her close relationship to the deceased, the trial judge should not have placed reliance on her evidence in preference over that of the appellant.
 
14.	I do not subscribe to this view in the criminal justice system of our country and I am pretty certain that this is not a legal position in most jurisdictions around the world. There is no law or rule of law or legal principle that says that a family member of a person involved in a court proceedings, whether civil or criminal, as a plaintiff or as a defendant; or as an accused or deceased person in a homicide case, is not a good witness or not eligible as a witness. This is a preposterous proposition. Justice would go begging where a family is massacred in an isolated location by a psychopath killer but there is one survivor in the family who is the only eye witness to the killing, can that family member, the only key and eye witness, be disqualified as witness in the case by the mere fact that he or she is a family member of all those who were massacred? I do not think so. 

15.	But that is not the only reason that the appellant challenged the evidence of Joyce Kuno. He further contended that as the only State witness and being the biological sister of the deceased, Joyce Kuno was not an independent witness, she gave inconsistent and contradictory evidence and was therefore not a truthful witness. The appellant can argue as long as he wants as to who the trial judge should have believed and not believed, at the end of the day, believing or not believing witnesses in their sworn evidence in a trial is an exercise of discretion by the trail judge upon his assessment of the demeanour of the witnesses who appear before him and give their testimony. This involved far more than simply hearing the evidence from the witnesses, it includes appearances, facial expressions, body language and all lot more that help the judge to determine who he or she must accept as telling the truth and whose story he or she must reject. Only the trial judge can make this assessment and decision, not this appellate court.

16.	The trial judge here has already exercised his discretion to believe Joyce Kuno and disbelieve the appellant. The only way the appellant can disturb this exercise of discretion is by showing the appellate court that the trial judge had erroneously exercised his discretion in disbelieving him and believing Joyce Kuno. Where is that error? Has he demonstrated that error?

17.	The High Court of Australia in House v R (1936) 55 CLR 499 said at 504 (per Dixon, Evatt and McTiernan JJ.):

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

18.	 This principle was adopted and applied in Papua New Guinea in Richard Harold Davies v Stanley Barker [1977] PNGLR 386 and in Chief Collector of Taxes v Bougainville Copper Ltd [2007] SC853. The Supreme Court comprising Frost CJ, Prentice DCJ and Kearney J (per Frost CJ) said in Davies v Barker said at p.397:

“This being an appeal against the exercise of discretion, it must I think, be shown to this Court that the Judge in Chambers exercised his discretion upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or not taken into account some matter for consideration. Then and only then (Lovell v. Lovell (1950) 8 CLR 192 at 199), House v. The King(1936) 55 CLR 499 at 504), the lower court having been shown to be clearly wrong in its decision (Australian Coal and Shale Employees’ Federation v. The Commonwealth and Others (1953) 94 CLR 621), or it appearing that otherwise injustice will be done (Evans v. Bartlam (1937) AC 473 at p. 480), the appellate court may exercise its own discretion in substitution for that of the lower court, if it has the material for doing so.”

19.	 The appellant is asking this appellate court to substitute its own findings of fact that favour the appellant against that of the trial judge which this court cannot just do that because that is what he wants. That is not the role of this court if he does not demonstrate where and why he says the trial judge had not properly exercised his discretion. And in my opinion, the appellant has failed to show any error in the exercise of that discretion by the trial judge.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            
20.	There is one other argument by the appellant is that the trial judge should have warned himself before accepting the evidence of the State’s only eye witness Joyce Kuno that the witness was the biological sister of the deceased. There is no such requirement in law for the judge to caution himself before accepting the evidence of Joyce Kuno as if the judge was dealing with evidence of identification where such warning is necessary: The State v John Beng [1977] PNGLR 115. Nor was the witness a minor that the trial judge had to exercise caution in accepting his or her evidence: Birch v The State [1979] PNGLR 75. This is a mature adult woman, married with children and who knew the appellant as generally a wantok who came from the same area as her and the deceased. She was a fit and proper person who was both competent and compellable as witness to be called in the trial regardless of her relationship to the deceased.

Provocation and Self-Defence 

21.	The appellant’s next ground of appeal revolves around the issue of provocation and self-defence. The appellant is contending that he raised a defence of self defence during his record of interview with the police but his defence counsel refused to rely on provocation and self-defence as his defence in the trial and instead he pleaded general denial. He argued that this had denied him natural justice and resulted in guilty verdict. This is a misconceived argument based on speculative imagination that would never have had any meaningful outcome in the case. Whatever advice he got from his lawyer was based on the proof of evidence his counsel had and the criticisms levelled against his lawyer is unjustified. In fact, all throughout the trial, his lawyer ran a very strong and tight defence case according to the transcript of the proceeding in the appeal book. 

22.	What the appellant must appreciate is that the trial judge refused to accept his version of the story of provocation and self defence. In the course of the entire trial, the story of self-defence came up twice, during the voir dire and in the main trial. A very damaging evidence against the appellant in his confessional statement was thrown out in the voir dire hearing and only the record of interview was admitted into evidence. While there is no dispute that the appellant raised self defence in the record of interview, that story failed to find traction in the trial judge’s acceptance of the evidence at the close of both the prosecution and defence case because he decided to accept the evidence of the prosecution. 

23.	Again, the appellant is once again challenging the trial judge’s exercise of discretion in the way he analysed the evidence. He needs to show how the trial judge had erred in exercising his discretion to believe the State witnesses story and disbelieve his story of self defence. His Honour was clear in his mind when examining the totality of the overall circumstances leading to the attack that led to the deceased being killed. There was an earlier fight between the appellant and the deceased that was stopped. They retired to their respective homes. Some hours later there was a second confrontation. The State’s only eye-witness says that after washing and changing into new clothes, the deceased was at a nearby market with her and others and chewing betel nut when the appellant approached them swinging an axe as he jumped up and down. The deceased trying to escape from the appellant bumped into some dogs and tripped and fell down face up. That was when the appellant swung the axe in his hand and cut the deceased several times on his face. The appellant then uttered some words and walked away from the scene.

24.	The appellant wanted the court to believe that it was the accused who came to his area while he was having shower outside the house armed with a bush knife. He was alerted by his uncle and he got out of the shower and picked up the axe used for chopping firewood and chased the deceased who fell in the drain and that was when he cut him once only. Unfortunately, the appellant’s story did not fit into the entire evidence in the State case. This is why his story of self-defence made not much impact nor impression on anyone, his lawyer and even the trial judge.

25.	His Honour made it plain clear that he did not believe the appellant on the defence of self-defence in his judgment at p. 179 of the Appeal Book:

“According to his evidence the scene depicted in the photographs is where the actual attack happened and that was on the bend-end of the road leading into the settlement.  During cross-examination the accused was invited to demonstrate how he cut the deceased.  He demonstrated by holding the axe with both hands above his right shoulder and delivering a downward and in an angular motion to the face of the deceased.  Given that it was a steel axe and quite heavy, it would have immobilized the deceased.  The deceased would not have any chance of running away.  He would have fallen down to the place he was struck. The evidence of Joyce is consistent with the answers given by the accused in his record of interview.  In particular, that he chopped the deceased on the road.  I do not place any weight on his assertion that his answers were fabricated.

The accused never complained to the committal magistrate about the impropriety of his answers in the records of interview until the case was listed for trial when he opted to file an objection.  First, on 18 May 2017 and second on 27 May 2017.  I do not accept his evidence of self defence and the location of the killing.  I find the answers given in answers to question 19 and 21 were accurately recorded by Senior Constable Andi.  The record of interview which the accused signed is admitted into evidence.  I accept that the location of the killing was on the road outside Joyce’s premises.  The deceased was not killed inside the accused’s premises as he claimed.

I also accept the evidence of Joyce regarding the number of times the accused cut the deceased on his face.  Her evidence is consistent with the evidence of Senior Constable Samson Pantan, the police photographer and Doctor Jacklyn Joseph.  Senior Constable Pantan did an external examination on the deceased and noted the deceased sustained two wounds – two open wounds on the left side head, one open would on his left temple, extending across to his left eye and then to his nose and one open would to his left jaw near his left ear.  Doctor Jacklyn Joseph who noted one incisional wound to the face and one incisional wound to the left cheek and one superficial wound on the right post auricular region.  I reject the accused’s defence of self defence.  I accept the evidence of Joyce, that the deceased was unarmed immediately before he was struck on this face with an axe.

Did the accused intend to kill the deceased? The answer is yes.  Soon after he chopped the decease, he uttered words to the effect and these words I have already stated.  He also did a thumbs up before walking away.  Intention to kill can also be inferred from the multiplicity of the incisional wounds and the location of the wounds to the face, the extent of the injuries depicted in the photographs and the use of a lethal weapon being an axe.” 

26.	And his honour repeated his finding to the appellant when explaining his verdict to him said at p.180 of the Appeal Book:

“I find that when you cut this man on his face, you intended to kill him.  Soon after you cut him, you made some comments.  You said, “Pikinini blong Michael Somare, yu go long heven nau,” and then you did the thumbs up and then you slowly walked away, jumped on a car and you left. So, your expressed statement and your conduct clearly showed to me that you intended to kill this man.  Then there is this weapon that you used.  It was an axe.  It is made of metal.  You cut this man on his face; not once, four times.  And the photographs clearly show the ferocity of the injuries that you inflicted to his face.  When somebody cut somebody on his face with an axe, one can only say that he intended to give him big injury or intends to kill him.  That is what happened in this case.”

27.	It is clear from the above passages that His Honour explained the evidence clearly to the appellant as to why he cannot accept his defence of self-defence as it was quite overwhelming that this was a cold-blooded killing on his part. I find no reason to quarrel with his honour’s conclusion. To find otherwise will be parting company with common sense and logic when the evidence of the number of incisive wounds on the same spot of the deceased’s head, police photographs and Dr Jacklyn Joseph’s Pathologist Post Mortem Report describing the nature and number of wounds observed on the body of the deceased post mortis is indicative of deliberate murder. If the appellant chased the deceased with an axe in his hand until he fell down and then he viciously attacked him with the axe, how can he argue that he acted in self-defence when he was the aggressor and not the defender or defending himself? There is no evidence that at the material time he swung his axe to strike the deceased, the deceased was about to kill him. And it was a case of him or the deceased. This critical evidence was lacking in the facts for purpose of self-defence to lie so there really was no self-defence.

28.	The law on self-defence is well settled. In the headnote of the judgment in The State v Peter Karik  (2011) N5149, the Court held, inter alia:
“(5) In order for the accused to successfully raise the plea of self defence under section 269 of the Criminal Code the court needs to be satisfied that the following elements of the defence exist:
(a)	the accused was unlawfully assaulted; and 
(b)	 the accused did not provoke the assault;
(c)	 the nature of the assault was such as to cause reasonable
apprehension on the part of the accused that he would die or suffer grievous bodily harm, and;
(d)	  the accused believed on reasonable grounds that he could not preserve himself from being killed or suffer grievous bodily harm; and
(e)	  the accused used such force as was necessary for his defence.”

29.	Applying this principle to the case in point on the facts as presented at the material time when the deceased was attacked and killed, there is no evidence that:
•	The appellant was unlawfully assaulted by the deceased
•	The deceased provoked the assault
•	Without there being any unprovoked assault of the appellant by the deceased, there was no cause for the appellant to be reasonably apprehensive that he would die or suffer grievous bodily harm; and
•	That the appellant believed on reasonable grounds that he could not preserve himself from being killed or suffer grievous bodily harm, and
•	The appellant used such force as was necessary for his defence.

30.	It is quite plain from the appellant’s own story where he says “I was washing in our bath area when my little sister raised the alarm about the deceased coming in armed with a knife to attack me but was stopped by my uncle. I ran out and on the way I picked up the wood-chopping axe and intending to scare the deceased away and I unintentionally swung the axe around which had somehow struck him directly in the head”, that as he came out of the bath the deceased attacked him or tried to attack him. But there is evidence that the appellant went after the deceased and picked up an axe with which he proceeded to attack the deceased. There is no evidence that at the time he attacked the deceased, the deceased was still armed with a knife and used that knife to attack the appellant. There is no such evidence. And this is why there is no reason to fault the trial judge’s finding of facts on the defence of self-defence which is just his figment of imagination, even after verdict has been passed.

31.	I agree with the trial judge that the evidence does not support self-defence. This ground must be dismissed.

No Miscarriage of Justice

32.	The final ground raised by the appellant is that there was a miscarriage of justice. The appellant raised this argument by raising a number of allegations regarding the conduct of the trial where the doctor was not called to give evidence when as far as he was concerned, he only attacked the deceased once and not multiple times as found by the judge. But this argument goes against logic and common sense because if the uncontested medical evidence shows multiple incised wounds to the facial area of the deceased, who else would have caused those wounds if it was not the appellant? The wounds speak for themselves and any sensible person cannot argue with that physical evidence when admitting on the one hand that he attacked the deceased and on the other denying that he attacked him several times.

33.	The appellant further argues that intention to kill was not established and there was a miscarriage of justice that cannot be remedied by an order for new trial except an order for an alternative verdict of murder or manslaughter due to contributory negligence and provocation by the deceased. Whilst this sentence may be meaningless from a strict legal sense, what I deduce from it is a layman’s argument that, he (the appellant) should not have been convicted of willful murder, he should have been found guilty of murder or manslaughter because he did not intend to kill the deceased, the killing was the result of provocation. I repeat the same views I expressed earlier. His Honour found no evidence of provocation and the appellant cannot rehash the same argument when it has already been rejected unless the appellant can show that the trial judge made an error in rejecting this evidence.  

34.	The law sees miscarriage of justice in many different ways, forms and circumstances where a party in a dispute is left without remedy when remedy is clearly available but not given. Such is the case in Philo Aufe v Richard Pii (2018) N7501 where the District Court refused to hear a motion by the Appellant who was challenging the decision of the court over grant of title of specified property to a party in whose favour the National Housing Corporation issued the title over and against the interest of the living-in tenant and who was not even an approved or eligible purchaser as defined under the relevant statute governing sale of NHC houses. The appeal was allowed and the Court said:

“10.	Section 28 of the NHC Act sets out the functions of the NHC. The relevant functions are S28 (1) (c ) whereby it can sell houses to eligible persons, and (d) make advances to eligible persons  and to approve applications to enable them to buy their own homes. Under S(2) the Minister has to declare a person to be an approved applicant. Under S3, the NHC has to declare a person to be an eligible person.

11.	There was no evidence before the Magistrate and there is no evidence before the National Court, that either the Minister or the NHC made any such declaration in relation to the first Defendant to be an eligible person because he doesn’t come within any of the requirements for having limited and so on, as he did not require assistance to pay the purchase price. Under section 1, an eligible person does not mean eligible to buy a property. 

12.	So under section 28, the only power given to NHC to sell houses is to either eligible persons or to approved applicants.

13.	Further powers are given under section 37, which provides that NHC may sell houses to eligible person or to an approved applicant or to a person who exercises option under section 38 (1) .

14.	Section 38 (1) provides that when a tenancy agreement has been in force for two years, the NHC may sell the house to the sitting tenant. This could not have applied to the First Defendant, as he was not the sitting tenant. There was also no evidence that he was an approved applicant or an eligible person. The First Defendant is therefore not covered by section 37 of the NHC Act, and so the applicants had arguable grounds for challenging the power of the NHC to sell the property and issue the title to the First Defendant.

15.	Pursuant to these provisions, the Applicants may have been able to successfully challenge the validity of the title issued to the First Defendant. They may not have been able to establish their own entitlement to purchase the house. However, as sitting tenants, they would have had sufficient standing to resist  an ejectment application by a person who was not the lawful title owner.

16.	Possession of a house is a significant issue. The failure to raise this issue in the proper way during the hearing, was the fault of the Applicants. Nevertheless, in view of the significant issue, the learned Magistrate erred in not calling upon the parties to be heard as to whether or not the case should be re-opened and the fresh evidence considered. The fresh evidence could have been found by the Magistrate to be sufficient to show that the property was bona fide in dispute.

17.	In the case of Pala v. Yop (2005) PNGNC 116, referred to by the Appellants Lawyers, the then Deputy Chief Justice set out the procedure to be followed when determining NHC tenancy and dealing with the property. They include giving the tenant the right to be heard before a decision is made. If the decision is to terminate, then written notice must be given. The procedure must be consistent with section 53 of the Constitution, which says that the State or State institutions such as the NHC must not unjustifiably repossess, forfeit, and extinguish or determine a person’s right or interest in a property. 

18.	In the present case the Applicants have the right and interest in the property, as sitting tenants. They were still the sitting tenants when NHC sold the property to the First Defendant, without any prior notice or termination of tenancy in March 2016.

19.	The overriding factor in an appeal is under section 230 (2) of the District Court Act, whereby an appeal will only be allowed if it appears that, there has been a substantial miscarriage of justice.

20.	For the reasons given earlier, I find that there was an error by the District Court in failing to direct the parties to appear and apply to re-open the case to adduce fresh evidence. Although, this by itself may seem to be not significant error, it has significant consequences, in that the Applicants were unable to rely on the documents which could show that they have bona fide dispute over the title, and therefore enable the Appellants to resist the application for ejectment. I find that this amounts to substantial miscarriage of justice.”

35.	I totally agree with the observations of the appellate judge in that case that justice would have gone begging and substantial miscarriage of justice would have resulted if the appellants were not allowed to re-open the case and be heard as the sitting tenants because by law, they ought to have been given that opportunity, to buy the property if NHC was minded to sell the property under its own sale scheme regulated by its own enabling Act. 

36.	Where is the miscarriage of justice complained of in this case?  There is no miscarriage of justice. The appellant had his day in court in which he vigorously defended himself by a competent counsel who applied every rule in the Criminal Practice Rules and Procedure including trial on voir dire and successfully threw out an alleged confessional statement but in the end, after all the evidence was tendered by both the prosecution and defence, the trial judge decided not to believe him but believed the State and convicted him. The evidence relied on by the trial judge is overwhelming against him for the charge he was indicted of and there could not have been any other verdict open that that he was convicted of.

37.	The appellant having failed in demonstrating any error on the part of the trial judge in arriving at his conclusion on the facts before him, there is no miscarriage of justice. Therefore, this ground must be dismissed as well.

Conclusion

38.	 In conclusion, I am of the view that this appeal must fail because the appellant has not demonstrated any error on the part of the trial judge in his analysis of the evidence especially when he relied on the testimony of the only eye-witness for the state who was the sister of the deceased when he preferred her evidence over that of his testimony. His defence of self-defence and provocation were rejected by the trial judge so none of the two defences came into contention when weighing up of the evidence. The trial judge correctly found that this killing was cold-blooded and mercilessly executed with a blunt axe that was repeatedly delivered causing multiple wounds to the head and face of the deceased as medical report and police photographs confirmed. The appellant’s own contention that he only swung the axe once which is strongly contradicted by credible and independent evidence from the post mortem report and photographs clearly showed that the appellant was not a truthful and credible witness who could be believed by any stretch of imagination.

An observation on prisoner in person appeal

39.	I wish only to make one observation in prisoner-appeals where prisoners appear in person but assisted with written submissions by lawyers or fellow inmates with legal knowledge or background. Speaking for myself, I encourage prisoners appealing in person to get as much help as they can to properly present their cases before the Supreme Court. However, when it comes to oral presentation and relying on written submissions that on the face appear to have been prepared by lawyers or persons with legal knowledge or background, I do not encourage and will not entertain the appellant reading such prepared submission in court when he is not the author and not even a lawyer or person with legal knowledge or background who drafted that legal document and cannot intelligently engage prosecuting counsel, a qualified lawyer, appearing for the State, on the legal issues raised. I would rather that the prisoner-appellant simply, refer to his written submission, draw attention of the court to his main contention in the appeal, and invite the court to read his submission subject to any alteration and or amendment he wished to make.

40.	Otherwise, having found that the appeal is without merits, I would order that the appeal be dismissed and confirm both conviction and sentence. 

41.	ANIS, J. I have read the draft by Kirriwom J and agree with the conclusion and have nothing further to add.

42.	LIOSI, J. I have read the opinion of the President and have nothing further to add. I too would dismiss the appeal for the same reasons.

ORDER

43.	The appeal is dismissed and both conviction and sentence confirmed.

Appeal dismissed.

Lawyer for the appellant: 		In person
Public Prosecutor: Lawyer for the Respondent