SC2805

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 17 OF 2024

ALEXANDER GENIA
 Appellant

AND 
THE STATE
Respondent

WAIGANI: CANNINGS J, BONA J, BERRIGAN J
28 AUGUST, 24 OCTOBER 2025

CRIMINAL APPEAL – AGAINST CONVICTION – S 299(1) of the Criminal Code – Wilful Murder – CCTV footage – Whether given undue weight – Self-defence – Whether trial judge properly considered the claims contained in the appellant’s confessional statement – Whether defence counsel incompetent – Whether the appellant was denied a fair trial - Appeal dismissed. 

The appellant appealed against his conviction of wilful murder on the grounds that the trial judge: a) did not adequate consider that the CCTV footage did not capture the whole incident; b) did not thoroughly examine the appellant’s argument of self-defence; c) denied the appellant a fair trial as his lawyer was not adequately prepared; d) did not afford an adjournment for the appellant to engage another lawyer; e) did not consider that the appellant’s lawyer failed to test the State’s case; and f) did not consider the injustice caused to the appellant as his lawyer’s performance at the trial was inadequate.

Held:

(1)	The weight to be given to film or video recordings, including CCTV, depends on the quality and clarity of the images and the circumstances in which it is taken or kept: State v Kissip (2020) N8184. The fact that footage is of poor quality, without sound, incomplete or intermittent may, amongst others, be important considerations but like any piece of evidence, the weight to be given to it is a matter to be considered by the trial judge in the circumstances of the particular case and together with all of the evidence in the case. 
(2)	The appellant failed to show any error in the trial judge’s assessment of the footage.
(3)	The principles governing unsworn statements from the dock are well established: Jimmy Ono v The State (2002) SC698; Kassman v The State (2004) SC759; R v Ulel [1973] PNGLR 254. The principles governing exculpatory statements are well established: Banaso v State (2022) SC2302.   
(4)	The appellant failed to demonstrate any error in the trial judge’s treatment of the evidence or his reasons for rejecting his claim of self-defence having regard to those principles and the evidence in the case.
(5)	The right of an accused person under s 37(4)(e) of the Constitution is not absolute. An accused is entitled to counsel of his choice subject to all proper exceptions:  SCR No 3 of 1980; Re Joseph Mavuk [1980] PNGLR 507. Whether a lawyer appointed before or even during a trial should be granted an adjournment is a matter to be determined in the event of an application and in the circumstances of the case. 
(6)	An accused person is entitled to a fair trial under the Constitution: s37(3). It follows in principle that the incompetence of defence counsel may give rise to a miscarriage of justice in exceptional cases. In general terms the appellant must establish not only that counsel was incompetent but that the incompetence was of such a nature or extent that it resulted in a material irregularity in the trial or in the conviction being unsafe or unsatisfactory such that it ultimately resulted in a miscarriage of justice.
(7)	The lawyer who appeared from the Office of the Public Solicitor at trial, whilst not the counsel originally having carriage of the file, had been assigned to the case and was ready to proceed. 
(8)	The appellant failed to identify any particular failure or combination of failures that could in any way be described as incompetence. 

Cases cited
Lati v The State (2015) SC1413 
John Beng v The State [1977] PNGLR 115
State v Kissip (2020) N8184 
Jimmy Ono v The State (2002) SC698
Kassman v The State (2004) SC759
R v Ulel [1973] PNGLR 254
Slatterie v Pooley (1840) 151 ER 579
Ingian v State (2022) SC2263 
Banaso v State (2022) SC2302 
R v Mark Darren Day [2003] EWCA Crim 1060
TKWJ v The Queen [2002] HCA 46
Nudd v R [2006] HCA 9
R v Birks (1990) 19 NSWLR 677
Roland Tom; Kaya v State (2021) SC2096
Mugi v State (2025) SC2689
Moses v The State (2024) SC2624 
SCR No 3 of 1980; Re Joseph Mavuk [1980] PNGLR 507
Tomscoll v Independent State of Papua New Guinea (2012) SC1208

Counsel
D Dotaona for the appellant 
C Langtry for the respondent State

DECISION ON APPEAL

1.	BY THE COURT: The appellant, Alexander Genia, was convicted of the wilful murder of Geoffrey Paul Bull, contrary to s 299(1) of the Criminal Code following trial. 

2.	The State alleged that on 19 September 2019 at about 9 pm the appellant went to a car park in Gordons in the National Capital District to meet the deceased in relation to a prior business deal. The property was guarded and there was one security guard on duty that night. The appellant and the deceased met at the car park and waited for a third person to arrive. The appellant sat in the driver’s seat of the deceased’s vehicle whilst the deceased sat in the passenger seat. They were there until early hours of the next morning. At about 1 am the deceased got out of the vehicle offside and walked to the front of the vehicle at which time the appellant ran him over with the vehicle. The deceased managed to get up whilst the appellant got out of the vehicle. The deceased chased the appellant who armed himself with a knife. The deceased jumped back into the vehicle and attempted to drive off but the appellant ran to him and repeatedly stabbed him with a knife. A struggle ensued and the deceased stepped out of the vehicle. He put up a fight but was overpowered by the appellant and the wounds already sustained. He fell to the ground where he continued to fight for his life whilst he was repeatedly and at random stabbed by the appellant until was stopped by guards who entered the premises to see what was happening.

GROUNDS OF APPEAL

3.	The notice of appeal contained eight grounds of appeal, two of which were abandoned at the hearing. The appellant maintains that the trial judge erred in mixed fact and law in: a) not adequately considering that the CCTV footage did not capture the whole incident; b) not thoroughly examining the appellant’s argument of self-defence as the deceased had threatened his life and previously aimed a gun at him. The appellant was afraid for his own safety, especially since the deceased had ties with the police and criminal gangs; and c) denying the appellant a fair trial due to the absence of his lawyer on the day of the trial. The appellant was only given half a day to find a new lawyer, who was not adequately prepared for the trial; d) not affording the appellant minimum natural justice by not granting a longer adjournment for the appellant to engage another lawyer for the trial; e) not considering that the lawyer for the appellant failed to test the State’s case and put up meaningful opposition; and f) not considering the injustice caused to the appellant whose lawyer’s performance at the trial was inadequate rendering him ineffective during the trial.

4.	The principles governing criminal appeals are well established. To succeed on an appeal against conviction an appellant must by virtue of s 23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

Ground a): CCTV footage

5.	The appellant submits that the trial judge’s heavy reliance on the CCTV footage shifted the burden of proof to the appellant to disprove its implications. The trial judge failed to consider that the footage had inherent limitations such that it may not capture prior interactions, verbal threats or events outside its frame which could be crucial for assessing the accused’s subjective state of mind.

6.	The submissions are misconceived and hypothetical. 

7.	The weight to be given to electronic evidence is to be guided generally by s 67J of the Evidence Act. The weight to be given to film or video recordings, including CCTV, depends on the quality and clarity of the images and the circumstances in which it is taken or kept: State v Kissip (2020) N8184. 

8.	The fact that footage is of poor quality, without sound, incomplete or intermittent may, amongst others, be important considerations but like any piece of evidence, the weight to be given to it is a matter to be considered by the trial judge in the circumstances of the particular case and together with all of the evidence in the case. 

9.	In this case there was no issue of identification and the footage was of high visual quality and lengthy in duration, capturing an almost unimpeded view of events before, during and after the alleged offence. Whilst the trial judge referred to the principle of res ipsa loquitor usually associated with the law of tort, his intent was clear and he considered in detail the weight to be given to the footage in this particular case:

“There is no emotion attached to its recording. It cannot be told to go one way or another. Nor can it forget what it saw that night between the 19th and the 20th September 2019 in the time that it has displayed. It sees all, hides no one, accused, deceased, witnesses including Hugo Ningeara and his guards, and the Police who came later to the scene. It does not cloud to favour the prosecution or the defence. It simply gives what was recorded… It directly hovers and is stationed where the crime was taking place…It simply followed the electronics set settled in it to come out with the images that will equate and be second to none. There is no question posed against its electronical programming, nor the playback and timing in it.”

10.	The appellant has failed to show any error in the trial judge’s assessment of the footage. 

11.	The ground is dismissed.

Ground b) Self-defence  

12.	The appellant submits that the trial judge failed to properly examine the claim that he acted in self-defence in circumstances where the deceased had threatened his life earlier the same day by putting a gun to his head, especially in circumstances where the deceased was a known criminal and had recently threatened the appellant’s family. 

13.	The appellant’s claims were contained in a confessional statement given to police which he adopted when giving an unsworn statement from the dock.

14.	No adverse inference is to be drawn by the Court as a consequence of an accused person deciding to give an unsworn statement: Jimmy Ono v The State (2002) SC698. An unsworn statement, though evidence in the case, does not have the same weight as sworn evidence. A Court may take the statement into consideration as a possible version of the facts and consider it with the sworn evidence whilst giving it such weight as it appears to be entitled in comparison with the facts clearly established by the evidence: Kassman v The State (2004) SC759; R v Ulel [1973] PNGLR 254

15.	It is not the case that the appellant was required to call evidence to substantiate his claims that the deceased was a known criminal or that his family had been threatened by the deceased but that does not alter the fact that other than the assertions contained in the appellant’s confessional statement there was no such evidence. 

16.	In this regard it is to be remembered that admissions are a well-established exception to the hearsay rule which generally provides that out-of-court statements cannot be used in evidence to prove the truth of their contents. That is because an admission, or a statement of fact which suggests an inference as to any fact that is relevant and which is adverse to the interests of the person responsible for the statement, has long been accepted as an exception to the hearsay rule because it is presumed to be reliable. What an accused person admits or confesses to be true may reasonably be presumed to be true: Slatterie v Pooley (1840) 151 ER 579; Ingian v State (2022) SC2263 at [28].  

17.	The same exception does not generally apply to exculpatory or self-serving statements. Where the prosecution tenders a confessional statement or record of interview containing both inculpatory and exculpatory material, however, the exculpatory or self-serving statements are admissible. In that case a judge may give less weight to the exculpatory assertions than to the admissions. Ultimately it is a matter for the judge to decide what weight to be given to any particular exculpatory statement bearing in mind that it is not made against interest, on oath or subject to cross-examination: see Banaso v State (2022) SC2302 at [35].   

18.	The learned trial judge had regard to the principles governing unsworn statements, together with the State’s evidence, including the CCTV footage and the evidence of the State witnesses, before rejecting entirely the appellant’s claim that he acted in self-defence, and going on to find that not only did the appellant not act in self-defence but that he set out intentionally to kill the deceased.

19.	The trial judge rejected the appellant’s claim that he had been threatened earlier that day or that he wanted to escape the situation that night. 

20.	The only evidence that came close to suggesting that the deceased was sometimes aggressive was a statement by George Billy that the deceased “normally gets mad and would chase and attack people”. As for the statement made to George Billy several days after the alleged events that the deceased put a gun to his head that is self-serving hearsay and inadmissible. Hugo Ningeara was a guard who came to the scene with other guards and stopped the appellant from stabbing the deceased. He gave evidence that the appellant said at that time that he was trying to defend himself.  Even if that statement might be regarded as part of the res gestae the trial judge was required to consider it against all of the evidence.

21.	The trial judge found on the evidence that it was the appellant who had the upper hand when he drove in his own vehicle to his father’s yard in Gordons, sent the single guard out to get drinks and betel nut instead of sending him to alert his father, and waited 12 minutes for the deceased to arrive in his own vehicle. It was the appellant who was the aggressor. It was the appellant who got into the driver’s seat of the deceased’s vehicle and the appellant who deliberately positioned the vehicle so that it was facing to drive out. The deceased put his own life in peril by walking in front of the vehicle on several occasions which was not consistent with the conduct of a man who had threatened to kill the person sitting in the driver’s seat of the vehicle. In addition, on several occasions the brake lights came on as the deceased walked near the vehicle as though the appellant was calculating the right moment to run him over. When the deceased did finally walk in front of the vehicle the appellant immediately ran him over. He did not do it to disarm. He did it to maim and disable. After running the deceased over the appellant waited several seconds before putting the vehicle in reverse and driving back over the deceased. Somehow the deceased managed to get up. The appellant was unable to pursue him in the vehicle because of a wall and so stopped and got out of the vehicle. The deceased chased the appellant around the vehicle briefly before he got into the driver’s seat of the vehicle as if to drive away. He was then repeatedly stabbed by the appellant with a knife inside the vehicle before he stumbled and fell to the ground whereupon the appellant continued to stab the deceased who desperately struggled for his life until he was stopped by the guards who responded to the deceased’s calls for help. 

22.	On the evidence the deceased did not have a gun or a knife with him at the time he was attacked and the only gun found at the scene was the appellant’s gun, which was in the glove compartment of his own vehicle. It was the appellant, furthermore, who was armed with a 27-centimetre knife which was conveniently located in his shoulder bag. 

23.	In addition, the medical evidence showed that the deceased suffered more than 11 deep stabs wounds to his body, face and chest. His ribs were fractured and he had numerous abrasions to his body. The appellant meanwhile was completely unharmed. As for the fact that the trial judge described those injuries as “gruesome” that was an apt description and it does not establish that the trial judge gave inappropriate weight to the level of force used. 

24.	Ultimately the trial judge found that there was no assault under either s 269 or 270 of the Criminal Code and that the appellant was not acting in defence of such an assault. 

25.	The appellant has failed to demonstrate any error in the trial judge’s reasoning that renders the verdict unsafe or unsatisfactory in those circumstances. 

26.	The ground is dismissed.

GROUNDS c) to f): LEGAL REPRESENTATION

27.	We shall deal with these grounds together. The Appellant submits that he was denied preferred counsel and was given insufficient time to prepare for the trial. This violated his right to a fair trial and natural justice, guaranteed by section 37 (protection of the law) and section 59 (natural justice) of the Constitution. Insufficient time may have meant that his counsel failed to effectively cross-examine the State witnesses, elicit important facts in defence and formulate comprehensive legal arguments or raise pertinent objections.

28.	The submissions are misconceived, hypothetical in nature, made without reference to authorities and lacking in merit. 

29.	An accused person is entitled to a fair trial under the Constitution: s37(3). It follows in principle therefore that the incompetence of defence counsel may give rise to a miscarriage of justice in exceptional cases. It is not necessary for the purpose of this case to consider the principles applying in any detail other than to observe in general terms that the appellant must establish not only that counsel was incompetent but that the incompetence was of such a nature or extent that it resulted in a material irregularity in the trial or in the conviction being unsafe or unsatisfactory such that it ultimately resulted in a miscarriage of justice. 

30.	As any review of cases in jurisdictions like England or Australia reveals the principles applying may be quite complex and the success of any such appeals are exceedingly rare: see for instance R v Mark Darren Day [2003] EWCA Crim 1060 and TKWJ v The Queen [2002] HCA 46; Nudd v R [2006] HCA 9. That is because the adversarial system proceeds on the basis that parties are bound by the conduct of their counsel: Roland Tom & Anor v The State (supra).  “As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence”: R v Birks (1990) 19 NSWLR 677 at 684 per Gleeson CJ. Whilst not binding that statement is consistent with the views expressed by the Supreme Court in cases including Roland Tom; Kaya v State (2021) SC2096 at [25]; Mugi v State (2025) SC2689 at [21]; and Moses v The State (2024) SC2624 at [8].

31.	It is also well established that the right of an accused person under s 37(4)(e) of the Constitution is not absolute. An accused is entitled to counsel of his choice subject to all proper exceptions:  SCR No 3 of 1980; Re Joseph Mavuk [1980] PNGLR 507. If an accused person wants a particular legal representative of their choice, they must meet the costs involved. If they are unable to do so they are assigned a lawyer. Whilst an accused person may indicate their preference, it is in the absolute discretion of the Public Solicitor to assign a lawyer to any particular case: Tomscoll v Independent State of Papua New Guinea (2012) SC1208 at [17] to [20]. As the Court observed in that case if an accused person is assigned a legal representative they do not like, they have a choice, accept the lawyer assigned to them or secure a lawyer of their own choice at their own expense or represent themselves. 

32.	It must also be observed, however, that given the increasing demands on the Office of the Public Solicitor having regard to its workload, the number and location of court sittings and circuits across the country, and the expectations of the Court in ensuring the efficient administration of justice, it is inevitable that there may be a change of counsel assigned by the Public Solicitor prior to or even during the course of a trial in some cases.  Whether the lawyer concerned should be granted an adjournment is a matter to be determined in the event of an application and in the circumstances of the case. 

33.	In this case the lawyer who appeared from the Office of the Public Solicitor at trial, whilst not the counsel originally having carriage of the file, had been assigned to the case and indicated that he was ready to proceed. 

34.	The appellant has failed to identify any particular failure or combination of failures that could in any way be described as incompetence. 

35.	On the contrary, when the State provided a draft list of 20 exhibits at the commencement of the trial counsel immediately indicated his objection to five documents and the CCTV footage, which former counsel had agreed with the State could be admitted by consent. The trial judge adjourned to the following day to allow the parties to discuss the matter. Counsel maintained his objection to the footage, which was ultimately overruled, quite correctly, but counsel clearly understood the issues in the case. He required eyewitnesses for cross-examination and put inconsistencies to them. He sought an adjournment at the close of the State’s case to discuss the accused’s options with him. He provided detailed written submissions on verdict some five days later analysing the evidence and pointing out alleged deficiencies in the State’s case. 

36.	Of course that was to no avail but that was through no fault of counsel. 

37.	The grounds are dismissed.

ORDERS

38.	   Accordingly, we make the following orders:

(1)	The appeal against conviction is dismissed. 
(2)	The conviction for wilful murder is confirmed.
________________________________________________________________
 Lawyers for the appellant: Dotaona Lawyers  
Lawyer for the respondent: Public Prosecutor